Matthews and Civil Aviation Safety Authority
[2020] AATA 1163
•6 May 2020
Matthews and Civil Aviation Safety Authority [2020] AATA 1163 (6 May 2020)
Division:GENERAL DIVISION
File Number: 2018/5544
Re:Timothy Matthews
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal:R CAMERON, SENIOR MEMBER
DR S LEWINSKY, MEMBER
Date:6 May 2020
Place:Melbourne
The Tribunal affirms the decision under review.
.........[sgd]............................................... ……[sgd]……………………….
R CAMERON, SENIOR MEMBER DR S LEWINSKY, MEMBERCatchwords
CIVIL AVIATION – Class 1 and Class 2 medical certificate – medical standards – brain injury – substance abuse disorder – personality disorder – medically significant condition – safety-relevant condition – can any conditions be imposed – no conditions able to ameliorate risk – reviewable decision affirmed
Legislation
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Regulations 1988 (Cth)
Cases
Hall and Civil Aviation Safety Authority [2004] AATA 21
Mulholland and Civil Aviation Safety Authority [2007] AATA 1952REASONS FOR DECISION
R CAMERON SENIOR MEMBER & DR S LEWINSKY MEMBER
6 May 2020
INTRODUCTION: THE REVIEWABLE DECISION
The Applicant seeks a review of a decision made on 24 September 2018 by the Senior Aviation Medical Officer of the Respondent, the Civil Aviation Safety Authority (“CASA”), confirming a previous decision to refuse to issue to the Applicant a Class 1 and Class 2 Medical Certificate (“the reviewable decision”).
THE APPLICABLE REGULATORY REGIME
CASA is the regulator of civil aviation in Australia established under the relevant provisions of the Civil Aviation Act 1988 (Cth) (“the Act”).
Section 3A of the Act specifies as its objects the establishment of a “regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.”
Section 9A of the Act requires CASA, and the Tribunal stepping into its shoes as a decision maker, to have regard for the safety of air navigation as the most important consideration when exercising the powers and performing the functions conferred upon it under the Act.
The Civil Aviation Safety Regulations 1988 (Cth) (“CASR”) have been made under the powers conferred by the Act, and these regulate the issue of various categories of applicable medical certificates.
The applicable regulations of the CASR are referred to for their full force and effect but need not be reproduced in these reasons. Under the applicable regulations, the holder of a pilot licence, whether commercial or private, must also hold the applicable class of medical certificate.[1] In this case the applicable medical certificates are Class 1 and 2.
[1] CASR 61.410 and 61.415.
The requirements for the issue of medical certificates are found in Part 67 of the CASR.
The Tribunal refers to several definitions contained in “Subpart 67.A - General” of the CASR that are relevant to the issues for determination by the Tribunal in this application.
The term “medically significant condition” is subject to a comparatively broad definition which applies to any of several conditions identified “no matter how minor” (emphasis added)[2]. These conditions include any illness or injury, bodily or mental infirmity defect or incapacity or sequela, abnormal psychological state or drug addiction and drug dependence. It should be observed that the inclusion of the words “no matter how minor” in the drafting of this regulation elevates the status of such conditions in some instances beyond that which would be the case if the plain and ordinary meaning of such words were applied.
[2] CASR 67.010.
The term “medical standard 1” is defined as meaning the standards set out in table 67.150[3]. Table 67.150 identifies applicable criteria for medical standard 1. The term “medical standard 2” is defined as meaning the standards set out in table 67.155[4]. Table 67.155 identifies applicable criteria for medical standard 2.
[3] CASR 67.010.
[4] CASR 67.010.
Regulation 67.015 provides the following meaning for the term “safety-relevant”:
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.
The criteria for medical standards 1 and 2 contained in each of tables 67.150 and 67.155 applicable to the Applicant for Class 1 and Class 2 Medical Certificates in this matter need not be reproduced in these reasons. They are helpfully contained in paragraph 19 of the witness statement of Dr Sanjiv Sharma.[5] The applicable medical standards are 1.1, 1.2, 1.3, 1.5, 1.6, 2.1, 2.2, 2.3, 2.5, 2.6 and 2.7.
[5] They are also usefully identified and explained in the Respondent's Statement of Facts, Issues and Contentions filed on 7 May 2019 and its further Outline of Submissions filed on 25 October 2019.
Regulation 67.180 of the CASR provides that the Respondent can only issue the relevant medical certificate if “the applicant meets the relevant medical standard.”
Regulation 67.165 of the CASR provides that if the Respondent has reason to believe that an applicant for the issue of a medical certificate has a condition that may, if they are issued with the medical certificate, endanger the safety of air navigation, the Respondent may direct such applicant to submit to an examination by an appropriate medical practitioner or health care professional as the case may be. This is relevant to regulation 67.180(2)(F), which provides that the Respondent must issue a medical certificate if, after the Respondent has directed the applicant to undergo such an examination it has taken place and having taken into account the results of same, the Respondent is satisfied that issuing a medical certificate to the applicant would not endanger the safety of air navigation.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both oral and documentary evidence before the Tribunal at the hearing of the application.
Dr Sharma, Senior Medical Officer, Aviation Medicine of CASA and Dr Michael Atherton, a Psychiatrist and Addiction Specialist, gave oral evidence.
The following documentary evidence was tendered before the Tribunal:
·a document prepared by the Applicant and lodged with the Respondent “Response to refusal of class 1 & 2 medical” dated 12 March 2019;
·medical Report of Dr Plumley dated 20 March 2019;
·email dated 20 May 2019 from Steve Brass to Timothy Matthews;
·statement of Dr Sharma dated 8 May 2019; and
·medical Report of Dr Atherton dated 2 May 2019.
Both parties also lodged various submissions and Statements of Facts, Issues and Contentions.
The Applicant did not give oral evidence at the hearing but instead decided to make submissions from the bar table. He was given the opportunity to enter the witness box and give evidence on oath or affirmation, but he chose not to do so. The Tribunal does not draw any adverse inferences against him by reason of him not giving oral evidence.
ISSUES FOR DETERMINATION
Helpfully, the Respondent has identified what the Tribunal considers to be the relevant issues for determination in this application. Those issues are:
(a)Whether the Applicant meets the medical standard for the issue of a Class 1 or Class 2 medical certificate;
(b)If not, whether the extent to which the Applicant fails to meet those standards is likely to endanger the safety of air navigation; and
(c)If so, whether any conditions could be imposed upon a medical certificate which would ameliorate the threat posed to air safety by the Applicant’s failure to meet the Class 1 and/or Class 2 medical standard.
SOME RELEVANT FACTS
On or about 12 November 2016, the Applicant applied for a Class 1 and 2 medical certificate.
A medical examination was conducted by a Designated Aviation Medical Examiner (“DAME”) Dr Jeffrey Farrow on 17 November 2016. A “Medical Examination Summary” of that examination was prepared by Dr Farrow in the prescribed form and submitted to the Respondent.[6] The medical examination addressed several matters, particularly a head injury suffered by the Applicant in approximately June of 1992. The Applicant’s condition arising from the head injury had been brought to the attention of the Respondent previously, in approximately 2000.
[6] Document T 10 of the T documents; the CASA Application for Aviation Medical Certificate-Declaration is document T 11 of the T documents.
In evidence before the Tribunal there was a report prepared by Dr Michael Poon, a Neurologist/Clinical Neurophysiologist, dated 3 February 2017.[7] In that report, Dr Poon advised that midway through the year of 1992 the Applicant had a horse riding accident when he was not wearing a helmet. He sustained what was described as a closed head injury requiring treatment at St Vincent’s Hospital. A follow-up scan demonstrated left frontal lobe gliosis as a result of the accident. In 2002, an electroencephalogram (“EEG”), a computerized tomography (“CT”) scan and neuropsychology were performed on the Applicant. Dr Poon recorded there had never been any seizures experienced by the Applicant, and that a further EEG and magnetic resonance imaging (“MRI”) had been arranged to be undertaken. Additionally, he noted that with respect to neuropsychology, there had been an assessment performed by Dr Bardenhagen in 2002. However, she had apparently since passed away. It was intended to arrange a further assessment through the Alfred Hospital.
[7] Document T 19 of the T documents.
The Medical Examination Summary produced by Dr Farrow was considered by a Senior Aviation Medical Officer of the Respondent.
The 19 December 2016 letter from the Senior Aviation Medical Officer to the Applicant
Following the medical examination and provision of the Medical Examination Summary, on 19 December 2016 Dr Mike Seah, a Senior Aviation Medical Officer, sent a letter to the Applicant identifying five “significant conditions” in the Applicant’s history that required further “clarification/investigation”[8]. The letter specified further information the Respondent required concerning these significant conditions before the application for the relevant medical certificates could proceed further. The significant conditions identified in that letter are discussed below.
[8] The letter is document T 12 in the T documents.
Head injury
The letter noted that the last report CASA had received from a Neurologist was in 2002. Additionally, it said that there had been no CT scan performed of the Applicant’s brain since 2001. It sought further information concerning clinical progress, additional risk factors and investigation including a current MRI scan of the Applicant’s brain.
Behavioural and Personality changes
The letter recorded that the DAME examination and review of previous reports identified some behavioural and personality changes since an accident that the Applicant had in 1992 when he fell off a horse. It also recorded that the last neuropsychologist report on its file was from 2001. Concerning this condition, CASA informed the Applicant in the letter that it required a recent Neuropsychologist assessment in order to determine if there were any cognitive, degenerative or personality issues that would present a risk to the safety of air navigation.
Hepatitis C
The Applicant had previously been diagnosed with this condition. In the letter, CASA advised the Applicant that it required a report from a Gastroenterologist with respect to certain matters which need not be reproduced.
Substance use
There was evidence before CASA of previous substance and alcohol abuse. Accordingly, CASA required:
(a)a hair test for drugs of abuse;
(b)blood tests for various things; and
(c)a National Police Check.
Gaps in history and certification
CASA identified what it described as “gaps” in the Applicant’s “medical history” and certification with CASA. Consequently, it required what it described as a “full evidential record” of the Applicant’s medical history. This included a copy of all GP Records for the previous 10 years, a copy of the past five years of the Applicant’s Medicare Benefits Schedule (“MBS”), and Pharmaceutical Benefits Scheme history (“PBS”).
Events following the 19 December 2016 letter
Following receipt of the 19 December 2016 letter from CASA, the Applicant took issue to some extent with the nature and breadth of the enquiries made and information sought in that letter. These concerns were recorded in an email of 3 January 2017 that he sent to the Respondent.[9] Additionally, he attempted to speak to the Senior Aviation Medical Officer who was the author of the letter. They were unable to speak on the phone. However, the Medical Officer, in a detailed email of 4 January 2017[10], addressed some of the Applicant’s concerns. Whilst it is not necessary to refer to or reproduce the contents of that email in full, it is nonetheless useful to note the substance of some of the observations made in it. The Medical Officer explained in that email that generally the effects of head injuries, particularly with severe brain trauma, can deteriorate over time. The tests and reports requested in the 19 December 2016 letter were required due to the significance of the Applicant’s previous head injury and residual neuropsychological deficits. Concern was also expressed about what was described as a lack of clinical oversight of the Applicant since 2002. It was also explained that the up-to-date information and evidence was required to determine how the Applicant’s condition had progressed and the amount of brain scarring currently, which would indicate the likely impact on his function.
[9] Document T 15 in the T documents.
[10] Document T 17 in the T documents.
The Applicant then took steps to retain the services of appropriate medical and allied health care specialists and gather the requisite information to respond appropriately to the requests contained in the 19 December 2016 letter. These steps included obtaining a referral to Dr Poon whose report of 3 February 2017 was referred to earlier. Dr Poon also referred the Applicant to Associate Professor Rubina Alpitsis, a Clinical Neuropsychologist at the Cabrini Medical Centre.[11]
[11] The letter of referral from Dr Poon to Associate Professor Alpitsis forms part of document T 19 of the T documents at page 87. Associate Professor Alpitsis was also furnished with a copy of a previous Neuropsychology Report prepared by Dr Fiona Bardenhagen. There were in the T documents two previous neuropsychology reports prepared by Dr Bardenhagen, dated 10 April 1996 and 31 December 2001. They are found at pages 252 and 250 of the T documents respectively.
Associate Professor Alpitsis prepared a report dated 3 April 2017.[12] Its contents are referred to in their entirety for their full force and effect. The report recorded that the Applicant sustained a closed head injury in a horse riding accident in 1992. Several tests were administered to the Applicant covering a variety of skills and attributes. Assessment results were then recorded. She noted that the Applicant’s basic visuo-perceptual abilities and visuo-construction skills were intact. In terms of language, confrontation naming was within expected range, but letter and semantic fluency were moderately below the average range.
[12] Document T 23 of the T documents.
Associate Professor Alpitsis expressed several opinions. She concluded that neuropsychological assessment at over 14 years post-accident revealed a fluctuating speed of information processing that overall fell mildly below the Applicant’s estimated average premorbid intellectual functioning. His other cognitive abilities, including verbal and visual memory, were essentially preserved.
Associate Professor Alpitsis also recorded that the Applicant showed fluctuating speed of information processing on the tests administered by her which were consistent with his reported performances in the previous neuropsychological assessments conducted in 1996 and 2001. She concluded therefore that this most likely represented a stable, long-standing mild cognitive inefficiency that has been present since the head injury suffered by the Applicant in 1992. In direct relation to a pilot’s licence, she only noted the past successful gaining of a recreational pilot’s licence.
A Toxicology Report prepared by a Senior Forensic Scientist dated 16 June 2017 was produced which had analysed a sample of the Applicant’s hair.[13] That toxicology report revealed that no drugs were detected in the sample concerned.
[13] The Toxicology Report of 16 June 2017 is document T 26 of the T documents.
Dr Mark Lust, Gastroenterologist, prepared a report dated 3 August 2017.[14] The report states that the Applicant is hepatitis C negative and does not require any specific treatment or monitoring. This report reveals that the question of Hepatitis C has resolved itself.
[14] Document T 35 of the T documents.
Dr Poon prepared a further report dated 8 August 2017 to enable (or as he put it “to marry”) the MRI brain and EEG results to the Applicant’s clinical findings.[15] He concluded that the MRI demonstrated left frontal and right posterior temporal lobe encephalomalacia due to his known history of trauma. He further stated that this had not caused any visual field defect or language issue. The EEG was normal. The Applicant had never suffered a seizure. He also observed that if the matter concerned a motor vehicle, the Applicant would qualify to drive a standard motor vehicle and he would also be allowed to apply for a commercial truck licence.
[15] This report is document T 36 of the T documents.
Dr John K Chow, an addiction medicine specialist, prepared a report dated 28 August 2017.[16] He referred to a patient history which dealt with issues referable to previous drug use, mental health and general health. There was specific reference to the head injury in 1992 with what was described as “post-traumatic amnesia from the horseriding accident which resulted in a fractured skull with a closed head wound [sic]”. He referred to the recent neurological assessment with EEG and an MRI brain which showed an incidental and arachnoid cyst. The reasons for the lack of attention by the doctor to the full details in the report of the MRI scan remains unclear to the Tribunal. In addition, the Tribunal considers it also remains unclear why the details were not brought to the doctor’s attention by the Applicant.
[16] Document T 45 of the T documents.
Dr Chow also concluded that any reactive depression from which the Applicant had previously suffered was subsequently resolved. He recorded that there were no other mental health or psychiatric symptoms of note. Dr Chow recorded the clinical findings on the day were “consistent with a healthy male who is mood-congruent with no signs of an active addiction.”
The Senior Aviation Medical Officer wrote to Dr Chow on 13 September 2017.[17] The Tribunal makes several observations with respect to the content of that letter. It is stated that the Applicant had a past history of cannabis, opioid and benzodiazepine abuse. It is then stated that the Applicant had undergone treatment under a methadone program. The Tribunal notes that the evidence does not support this conclusion as it was in fact his girlfriend who had undergone that treatment program. The letter then advised that the Applicant had organised and attended an appointment with Dr Chow before the Respondent had sent the Applicant a letter, a copy of which was attached for Dr Chow’s consideration, together with “all relevant historical material he has provided to CASA”. It stated that the Applicant was supposed to attend the review with Dr Chow armed with all relevant background information, because “as a result of his severe head injury, his provision of information can be somewhat selective.” The letter also attached a consent form from the Applicant enabling the Respondent to communicate directly with Dr Chow. It also invited Dr Chow to consider whether he wished to revise his recommendations and conclusions based upon the information provided.
[17] Document T 58 of the T documents.
Dr Chow responded to the letter from the Senior Aviation Medical Officer of 13 September 2017 with a report dated 2 October 2017.[18] He stated that he had an additional opportunity on 26 September 2017 to assess the Applicant for what he described as “clarification of his past history”. The further history Dr Chow stated was obtained from the Applicant notwithstanding the concerns raised in the letter of 13 September 2017 from the Respondent about the extent of details of history likely to be given by the Applicant due to his previous head injury.
[18] Document T 66 of the T documents.
In his 2 October 2017 report, Dr Chow identified a course of treatment over some years with a drug known as buprenorphine (Subutex). This treatment apparently continued for approximately three years up until 2014. The conclusion was that this therefore, translated to an opiate addiction with opiate withdrawal symptoms. It is recorded that the Applicant was transferred to Dr Leder for treatment which included a gradual dose reduction, a switch to lower dose tablet preparation, and then finally resulting in him being weaned off completely. As noted earlier, it also recorded that the Applicant (stated he) was never treated with methadone itself and never abused pharmaceutical opiate analgesics. Dr Chow concluded in the light of the history obtained, in particular to the opiate dependence which he developed as described, it was apparent that the Applicant’s past substance abuse/dependence history was more extensive than he had first obtained. He concluded nevertheless that in his opinion, there was insufficient evidence from the addiction perspective to indicate an active problem or lack of fitness to apply for “flying privileges”, provided ongoing abstinence is maintained.
A letter from Dr Elizabeth Leder was in evidence dated 13 December 2017.[19] It confirmed that she treated the Applicant between January 2010 and July 2014. During that time, he was being treated with buprenorphine for a “self-reported dependence to heroin”. She described progress on the buprenorphine program as excellent with no evidence of ongoing heroin use. There was a gradual reduction in his buprenorphine dose with a successful completion of the program in May 2014. She observed she had seen the Applicant on a few occasions in 2017 and that there was no evidence before her of any illicit drug use on those occasions.
[19] Document T 76 of the T documents.
A Toxicology Report dated 18 December 2017 prepared by a Senior Forensic Scientist was in evidence. It revealed the presence of 110 pg codeine per mg.[20]
[20] The Toxicology Report of 18 December 2017 is document T 79 of the T documents.
Another Toxicology Report dated 29 March 2018 prepared by a Senior Forensic Scientist was also in evidence. It revealed the presence of 20 pg codeine per mg.[21]
[21] The Toxicology Report of 29 March 2018 is document T 88 of the T documents.
Dr Russell Golden, a Consultant Psychiatrist, prepared a report dated 17 April 2018 that was in evidence.[22] In that report Dr Golden provided a brief history after having taken what he described as a “comprehensive developmental and past history”. He noted that there was a previous psychiatric assessment by Dr Zarrar Chowdary in 2014 which he did not have available. Amongst other things, he noted a history of Suboxone prescription. The Applicant stated to him that he was unclear why it was prescribed and denied any opiate dependence. Dr Golden concluded that he did not find the Applicant currently suffering from a mental illness. The Tribunal finds it surprising that Dr Golden did not call for the report of Dr Chowdary. It should be noted that that report was before the Tribunal.[23] A particular reason for the Tribunal being surprised that it was not called for was because the Applicant disputed Dr Chowdary’s diagnosis that he was suffering from depression. Dr Golden also recorded that this report was apparently prepared “for the children’s Court”. One would have expected that this fact might have raised some concerns in the minds of a consultant psychiatrist from whom a “comprehensive symptom review” was sought, particularly in the context of the Applicant’s “capacity to obtain a Class 1 pilot’s license”. This is all the more perplexing given the observations made by Dr Golden that the Applicant’s presentation was unusual, in that he had denied mental health issues despite the fact that he had been referred to him by general practitioner requesting “management” of his conditions.[24] It seems to the Tribunal in this setting that the Applicant’s conditions in these circumstances (bearing in mind it is in the context of the Applicant seeking a Class 1 and Class 2 medical certificate) would warrant very careful scrutiny.
[22] Document T 90 of the T documents.
[23] Document T 4 of the T documents.
[24] The Tribunal acknowledges that in his report Dr Golden specifically states that the referral requested "management". It is not apparent to the reader of the report why the term management was referred to in quotation marks. It could be as is sometimes the case, that the referrer has used the term management somewhat loosely and could have meant several things including management, opinion or just a report. Regrettably, in a sense this does not assist.
A further Toxicology Report prepared by a Senior Forensic Scientist dated 20 June 2018 was in evidence.[25] This toxicology report had analysed a sample of the Applicant’s hair and it revealed that no drugs were detected.
[25] Document T 91 of the T documents.
Dr Collette Richards, Aviation Medical Specialist, prepared a further report dated 31 August 2018 which was produced to the Respondent.[26] This report commences with the introduction that records what she described as the Applicant’s “contentious substance use history”. It should be emphasised that some of that history has been hotly contested by the Applicant. The first factual assumption strenuously denied by the Applicant is the assertion in that report that he injected heroin. The report also states that the Applicant has a history of self-harm, with three known attempts by hanging and overdose. The allegations of self-harm by hanging and overdose have also been strenuously denied by the Applicant.
[26] Dr Richards’ report is document T 94 of the T documents.
The Tribunal will further summarise in these reasons some of the matters addressed by Dr Richards in her report of 31 August 2018.
The history of the Applicant’s closed head injury was recorded by Dr Richards. Reference was made to the testing conducted by Associate Professor Alpitsis indicating a fluctuating speed of information processing that fell mildly below the Applicant’s estimated average pre-morbid intellectual functioning. This was thought to represent stable, long-standing mild cognitive inefficiency (Dr Richards noted additionally that it was not stated as a deficiency). She also referred to the MRI brain which demonstrated left frontal and right posterior temporal lobe encephalomalacia (described as softening of the brain parenchyma) related to the head injury. The results of the EEG were referred to as subject to its limitations being normal.
Dr Richards reported that there was a favourable report from Dr Chow concerning addiction issues, although Dr Richards was concerned about a positive test on 18 December 2017 (in the context of past use). She stated that a prolonged period of abstinence in the order of 12 months, with three monthly negative hair sample toxicology would be reasonable (for conditional licences, then with maintenance of three monthly testing). She recorded no current evidence of mental health disorder or symptoms. She referred to, as noted in the previous paragraph, the demonstrated mild cognitive inefficiency (not stated as a deficiency) noted on the most recent neuropsychologist’s assessment (by Associate Professor Alpitsis). She observed however that it was also observed in the two previous neuropsychology assessments of 1996 and 2001. She stated that it was noted that the Applicant had previously held a Class 2 licence despite the previous neuropsychologist assessments. Critically, in her recommendations she observed that the Applicant had yet to demonstrate abstinence for a period of 12 months, with three monthly negative hair toxicology.
Dr Richards also recommended further three monthly local medical officer reports to monitor the Applicant’s mental health so as to mitigate concerns of degradation in mental health, maladaptive coping mechanisms and relapse of substance abuse. Dr Richards stated (pilot) training reports could be used to monitor any functional impact of the mild cognitive inefficiency.
Dr Noel Plumley, Addiction Medicine Specialist and Associate Fellow of the Australasian College of Aerospace Medicine, conducted a medical assessment of the Applicant and subsequently prepared a report dated 20 March 2019 which is in evidence before the Tribunal.[27] Once again, the contents of this report from Dr Plumley are referred to in their entirety for its full force and effect. A history was taken by Dr Plumley from the Applicant after he had been furnished with an array of documentation identified in his report. Most of that documentation has already been referred to in these reasons.
[27] Exhibit A2.
Dr Plumley stated that his “impression” was that the Applicant had an opioid use disorder caused by opioid replacement treatment, which was in long-term remission. He did canvass whether or not the Applicant had used heroin in the past. He noted that the Applicant had stated to him that he had never used heroin. However, he also noted that Drs Chowdary and Leder had mentioned in their letters furnished to him the use of heroin by the Applicant in the past. Dr Plumley was unable to verify or validate the veracity of these observations or the history given to him by the Applicant.
It should be noted that by the time the Applicant consulted Dr Plumley there had been two separate detections of the presence of codeine in his system as recorded in the toxicology reports referred to above. Dr Plumley considered that those detections were probably due to over-the-counter preparations being used by the Applicant as he had advised.
Dr Plumley assessed at that stage that the Applicant had a non-problematic issue with drugs of dependence. He recommended a cautious approach to granting aviation medical certification. Concomitant with such recommendation was a suggestion that the Applicant have testing of his hair at three monthly intervals for a period of 12 months. Dr Plumley stated that if at the conclusion of 12 months such hair testing revealed no presence of all substances, he felt confident that the Applicant could be said to have remained in long-term abstinence.
Dr Atherton, a Psychiatrist and Addiction Specialist, prepared a report dated 2 May 2019. This report was prepared by Dr Atherton after he had conducted an interview with the Applicant. Prior to preparation of the report Dr Atherton was furnished with an array of material, including the several reports that have been referred to previously in these reasons and are contained in the T documents filed with the Tribunal and tendered in evidence. Dr Atherton also gave viva voce evidence to the Tribunal at the hearing of this application.
Dr Atherton expressed several opinions of relevance to this application. The contents of his report are referred to in their entirety for their full force and effect. He expressed the opinion that the Applicant has a diagnosis of opiate use disorder – Severe Type in long-term remission, alcohol use disorder in long-term remission and cannabis use disorder in long-term remission. In the context of the application for a pilot’s licence, he considered that the Applicant displays features consistent with an Anti-Social Personality Disorder. Dr Atherton also expressed significant concerns about the veracity of the history presented to him by the Applicant. He considered it more likely than not that the history presented by Dr Chowdary is correct and that there is a significant history of self-harm and mental illness in the form of anxiety and depression, most likely in the context of substance misuse. It should be noted again that this conclusion is hotly contested by the Applicant.
Relying upon the report prepared by Associate Professor Alpitsis referred to earlier in these reasons, Dr Atherton concluded that the Applicant “definitely had an organic brain injury with persistent cognitive deficits”. Additionally, Dr Atherton summarised Associate Professor Alpitsis’ report, stating “that in 1996 the Applicant presented with mild dysthymia and reported high anxiety, he was found to have impaired sustained attention and learning and his information processing speed was slowed and reportedly showed no improvement from an assessment that occurred two weeks post injury”. There was a conclusion that there was most likely a stable long-standing mild cognitive inefficiency that had been present since the head injury. Dr Atherton observed that the cognitive assessments so far undertaken of the Applicant had shown moderate to mild deficits to some areas. (With respect to Dr Atherton this observation is not a strictly accurate account of the conclusions in Associate Professor Alpitsis’ report which recorded that there was a long-standing mild cognitive inefficiency.) Dr Atherton stated that although he is not a neuropsychologist, it seemed reasonable to him that these would not preclude the Applicant from flying an aircraft as long as he was able to pass all of his exams and training assessments. However, Dr Atherton did to some extent qualify this opinion by stating that the most concerning issue of note to him is the Applicant’s judgement and decision-making capacity. He expressed the opinion that he had serious concerns about the Applicant’s capacity to operate safety sensitive aviation activities and to abide by the clear, precise rules and regulations which govern aviation activities. He concluded therefore that he has grave concerns about the judgement and decision-making capacity of the Applicant and at present does not believe that he is suitable for safety sensitive aviation activities.
Dr Sharma’s witness statement contained extensive details derived from various sources including several of the medical specialists whose reports were in evidence. Additionally, there was reference to several toxicology reports, selective history reports, medical examination summaries and the national criminal history check. He then proceeded to explain the system of regulatory aviation medicine in Australia and how that system was applied when considering the application before the Tribunal. As noted earlier in these reasons, he did identify the applicable medical standards to the Applicant’s Class 1 and Class 2 medical certificates.
Dr Sharma concluded that, after reviewing the material, the Applicant’s medical conditions were likely to adversely affect his ability to safely exercise the privileges of a pilot’s licence. This conclusion was reached on the basis of the available medical evidence. This evidence enabled him to reach a state of satisfaction that the Applicant had an established medical history of problematic substance use, organic brain injury with persisting cognitive defects and indications of a personality disorder, which in his opinion constitute a “safety relevant condition” for the purposes of several of the criteria of the medical standards set out in the Table 67.150 and Table 67.155 of the CASR.
Dr Sharma considered that the Applicant’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’s licence, including:
(a)impaired decision-making;
(b)impaired alertness;
(c)impaired reaction time;
(d)loss of situational awareness;
(e)impaired concentration; and
(f)impaired executive functioning.
By reason of these matters, Dr Sharma was satisfied that the Applicant did not meet the Class 1 and Class 2 medical standards in all respects due to such medical conditions. Relying upon what he said was the Applicant’s medical history and the expert opinions expressed by various medical specialists referred to previously, he considered that the extent to which the Applicant does not meet medical standards 1 and 2 is likely to endanger the safety of air navigation.
Dr Sharma also considered the question of whether a conditional medical certificate for each of the classes sought could be issued. He reached the conclusion that in his view no additional conditions would adequately ameliorate the risks to air safety posed by the Applicant’s medical conditions, without providing adequate demonstrable evidence of abstinence from substance use for a period of at least 12 months. He considered that once such evidence had been provided, the Respondent would be able to objectively review the Applicant’s remaining conditions of what he described as organic brain injury with persisting cognitive defects and indications of a personality disorder for fitness for a Class 1 and Class 2 medical certificate.
The Tribunal noted the reference in two reports that monitoring during pilot training was a modality for monitoring the practical impact of the head injury. The Tribunal considers it is not clear how this would come about and evaded the need (obligation) to directly assess the condition for the review at this time.
CONSIDERATION
The Applicants Conditions
The Applicant in his final submission identified three issues for consideration:
(a)head injury;
(b)drug use; and
(c)personality disorder.
The Respondent in its Outline of Submissions contended that the Tribunal should be satisfied on the basis of the available medical evidence, that the Applicant had the following medically significant conditions:
(a)opiate use disorder;
(b)alcohol use disorder; and
(c)cannabis use disorder.
These three disorders adopted by the Respondent are obviously derived from the analysis and conclusions in Dr Atherton’s report.[28] The Tribunal will consider the opiate, alcohol and cannabis use disorders under the collective description “drug use” as used by the Applicant.
[28] The specific response to "Q 14" of Dr Atherton's report (Exhibit R3).
Dr Atherton did refer to “personality disorder” and some of the other experts indicated concerns in that regard and it also can probably be considered as a useful generic descriptor of that alleged condition or similar ones as described in the material.
The Head Injury
In its Statement of Facts, Issues and Contentions, the Respondent in various ways refers to what is described as a history of closed head injury, and refers to the recent neuropsychologist testing which indicated a fluctuating speed of information processing as have been previously addressed in these reasons.
The Applicant contended that in effect his head injury had stabilised, and its manifestations have remained constant since the accident concerned. He stated that he has never suffered “any side effects as a result of the accident”. It is also contended that he has never had an epileptic seizure or, has any family history of epilepsy. Another contention made by him is that because no comparable neuropsychological tests were conducted before he suffered his head injury, there is in effect, no yardstick by which to measure his cognitive efficiency, and therefore any conclusion to some extent is left open to “assumption and speculation as to any ongoing subsequent issues as a result of the accident”.
The Respondent relied on the contents of the various reports referred to above as what it describes as the history of closed head injury with left frontal and right posterior lobe encephalomalacia as a sequela of the accident, which has produced a degree of functional incapacity or risk of incapacitation. It is, therefore, a physical condition which is safety relevant within the definition of the CASR. By reason of these matters, the Applicant does not meet the criteria applicable for medical standards 1.1 (b) and (d), 2.1 (b) and (d), 1.2 and 2.2. Following on from this conclusion, it is contended that the Applicant has a history suggestive of a personality disorder, which could be premorbid or a sequela of an earlier head injury, and further by reason of such matters, the Applicant does not meet the criteria applicable for medical standards 1.4 and 2.4. Once again, it is contended on behalf of the Respondent due to the Applicant’s history of the closed head injury, with a recent brain MRI demonstrating left frontal and right posterior lobe encephalomalacia, he does not meet the criteria applicable for medical standards 1.8 and 2.8.
The most recent Neuropsychological report from Associate Professor Alpitisis at best recorded the Applicant having a stable long-standing mild cognitive inefficiency. That is said to involve a fluctuating speed of information processing that overall fell mildly below his estimated average premorbid intellectual functioning. After reviewing the MRI brain, Dr Poon identified left frontal and right posterior temporal lobe encephalomalacia. It should not be lost sight of that the Applicant has suffered brain injury. It has left permanent residual effects. Dr Poon also observes that the Applicant has not suffered a seizure. It should be observed that it has never been suggested in any of the medical material that the Applicant had suffered a seizure; the problem that he faces is cognitive. There is front and rear damage to the Applicant’s brain. Most of the medical opinions referred to earlier in these reasons do not go so far as to say that it is completely safe for the Applicant to fly. It should be recalled that as a matter of construction, the definition of a “medically significant condition” in regulation 67.010 of the CASR includes an illness, injury, bodily or mental infirmity, “no matter how minor” (emphasis added). The inclusion of the words “no matter how minor” casts a wide net and is of course consistent with the objects of the Act referred to above, in which the safety of civil aviation with particular emphasis on preventing aviation accidents and incidents assumes primacy. The front and rear damage to the Applicant’s brain (with functional impact) as has been outlined in the material must fall within the definition of medically significant condition in regulation 67.010 of the CASR.
Having determined that the head injury is a medically significant condition within the meaning of regulation 67.010 of the CASR, the question becomes: “is it safety relevant?” Does it reduce or is it likely to reduce the ability of the Applicant to exercise a privilege or perform a duty imposed or to be imposed by a licence?
The word likely is not a term of art and is one that is frequently construed in many statutes applicable to a variety of settings. Several authorities were referred to by the Respondent in its submissions. The construction of the term must be considered in the light of the objects of the Act which give the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents primacy. In this context, the Tribunal agrees with the observations of Deputy President Handley in Hall and Civil Aviation Safety Authority[29], that the term cannot be based upon a statistical likelihood or for that matter conventional laws of probability. The task of the decision-maker is to weigh up primary requirements of air safety emphasising accident prevention, with the applicant’s interests in the safe exercise of the privileges and performance of the duties associated with holding a pilot’s licence. Whether an applicant for a licence has a high risk or low risk is beside the point. If there is a risk of incapacity which is significantly different to the remainder of the aviator population who do not suffer from such a safety relevant medical condition, the risk is real and not imaginary or fanciful.[30] It can be a substantial or real risk even though the probability may be comparatively low.
[29] [2004] AATA 21 at [45].
[30] See Mulholland and Civil Aviation Safety Authority [2007] AATA 1952 at [65] – [67].
With reference to a consideration of the head injury suffered by the Applicant, at best there is the report of Dr Chow dated 28 August 2017 who, after devoting one relatively spartan paragraph to the condition, concludes in the context of an addiction question that if supervised urine drug screening confirms the Applicant’s abstinent status, he did not have any objection to his application “for flying privileges”. It is considered by the Tribunal to be at best guardedly helpful to the Applicant. Dr Chow is not a specialist in brain injuries, nor a neuropsychologist. His comments concerning the Applicant’s head injury referred to the EEG and MRI brain but did not note the more substantial findings on the latter. No reference was made to any of the neuropsychiatric assessments. Furthermore, following the more specific request of the Respondent, although with the overstating indication of severe (emphasis added) head injury, Dr Chow in his report of 2 October 2017 deferred to the reporting of the Applicant and the reassurances from Dr Poon (as below) that applying for a commercial truck licence was not precluded (by the head injury) and in no way retracted his previous supportive comments.
The Tribunal considers the definitive assessment by Associate Professor Alpitsis on 3 April 2017 has dominant relevance for the current matter, particularly in the absence of anything substantial to the contrary. The Tribunal considers there are findings of a relatively mild nature, but which must be viewed as causing a fundamentally unacceptable risk to air safety. It is certainly a safety-relevant medical condition within the meaning of regulation 67.015 of the CASR. In stating this, the Tribunal is highly aware of the major impact for the Applicant, particularly in view of his stated confined primary career goal with a commercial pilot’s licence.
Due to his brain injury and its effects as observed above, the Tribunal considers that the Applicant does not meet the medical standards in the applicable tables 67.150 and 67.155 because such medical condition is safety relevant as it reduces, or is likely to reduce the Applicant’s ability to exercise the privilege conferred or to be conferred, or to perform a duty imposed or to be imposed by a licence that he holds or has applied for, in this instance a commercial pilot’s licence.
The Tribunal considers that the medical and professional evidence before it demonstrates that the Applicant’s condition caused by his brain injury and its effects, 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:
(a)impaired decision-making;
(b)impaired alertness;
(c)impaired reaction time;
(d)loss of situational awareness;
(e)impaired concentration; and
(f)impaired executive functioning.
It was contended both by the Applicant, and alluded to by some of the medical witnesses, that a relevant consideration for the Tribunal to take into account was the fact that he had previously held a private pilot’s licence. The fact that the Applicant (or for that matter any applicant) may have previously had a licence, may well be so. However, the Tribunal must consider all the material including experts’ reports, before it at the time the application is heard. If those experts’ reports lead the Tribunal to reach a conclusion that an applicant does not meet the requisite medical standards, the fact that the Applicant may have previously held a private pilot’s licence (or for that matter a commercial licence) cannot fetter, or otherwise affect the Tribunal’s decision-making; it is irrelevant.
Dr Poon contended that if it were an application for a licence to drive a motor vehicle, the Applicant would qualify to drive a standard vehicle and would be allowed to apply for a commercial truck licence. The Tribunal considers that this is an irrelevant consideration and something quite different. The implication must be rejected. Driving a car or a truck on the road is a different process, in a different setting. It cannot be compared with the demands and requirements of being a commercial pilot, let alone a private pilot. The margins for error are much lower if not critical. The capacity to react and make decisions under pressure is critical. The consequences if potential symptoms and side effects occur which impairs someone’s critical processes in an aviation setting, as mentioned in the previous paragraph, point to the two tasks as being demonstrably different. It is an irrelevant consideration.
Therefore, the Tribunal concludes that with respect to the head injury outlined previously in these reasons, the Applicant has a safety relevant condition within the meaning of regulation 67.015 of the CASR, and therefore the Class 1 and Class 2 medical standards 1.1 and 2.1, and 1.8 and 2.8 in tables 67.150 and 67.155 of the CASR.
Drug Use
On the issue of drug use there are several matters that emerge. As noted earlier in these reasons, the Applicant has steadfastly denied several of the allegations that have been made concerning his prior use and consumption of drugs. The Tribunal considers that it does not need, nor is it required, to embark upon a fact-finding mission to resolve this question. Of course, as noted earlier the Applicant did not enter the witness box to give evidence on oath or affirmation concerning this issue. He did however steadfastly maintain such denials in his submissions to the Tribunal.
Apart from Dr Atherton, there was considerable comity from several of the experts in addressing this question. Dr Chow concluded that there were no signs of an active addiction and recommended that subject to urine drug screening to confirm his abstinence status he had no objection to the application. His subsequent report also referred to more recent screening and toxicology reports that showed no presence of drugs. Dr Richards recommended that his abstinence could be demonstrated over a period of 12 months by three monthly negative hair toxicology. She concluded that if there was a demonstrated 12 months abstinence, a conditional licence could be considered with the requirement for ongoing three monthly here toxicology. Dr Plumley, similarly to Dr Richards, recommended what he described as a “cautious approach” by requiring the Applicant to have hair testing at three monthly intervals for 12 months. If at 12 months the hair test was clear of all substances, he felt confident that the Applicant had remained in long-term abstinence.
Even Dr Atherton whilst identifying the Applicant as having an opioid use disorder, alcohol use disorder and cannabis use disorder, concluded that he did not believe that he continued to suffer from such disorders. Dr Atherton stated that he reached this conclusion as there is no evidence from the history, his behaviour or investigations which have recently been completed, including numerous hair tests, that he is now using substances in a problematic manner. Additionally, he concluded that his “substance use disorders” had been treated, and his examination of the history of such treatment suggests that the Applicant had evidence-based treatment for his opiate use disorder which had been successful.
There was the issue of the recent toxicology tests revealing the presence of codeine. There was not a great deal of evidence on this topic. However, Dr Plumley considered that they were probably due to the Applicant using over-the-counter preparations. He also observed that codeine had been changed to a Schedule 8 Drug on April 2018, thenceforth requiring dispensing via a prescription. He felt it was more likely than not that he would not have been surprised to have seen the presence of codeine in the hair samples prior to that date. Given this evidence the Tribunal does not place much weight on the presence of codeine in the hair samples at all.
The Respondent contends that there have been inconsistencies in the Applicant’s account of his history concerning substance abuse. The inconsistencies are acknowledged and in particular the contents of the reports of Drs Chowdary and Leder that were in evidence. Considerable emphasis was placed upon the observations concerning the inconsistencies in the Applicant’s history contained in Dr Atherton’s report. It is submitted that the Tribunal therefore can have no confidence that any rehabilitation or therapy that he has undergone for substance abuse has been successful. Whilst the Tribunal understands this contention it cannot accept it. Indeed, it is inconsistent with the conclusion noted earlier in Dr Atherton’s report concerning the opioid, alcohol and cannabis use disorders that he does not believe the Applicant continues to suffer from them. The inconsistencies highlighted in several ways, including particularly the contents of the reports of Drs Chowdary and Leder, are acknowledged.
In terms of medical conditions, the Tribunal considers that the approach recommended by Drs Chow, Richards and Plumley, that were a medical certificate to be issued the Applicant be required over a 12 month period to undergo hair tests every three months, would be a satisfactory method of establishing his abstinence from drugs or substances. Were he to relapse, there could be an immediate suspension or cancellation of the licence concerned. Therefore, the Tribunal concludes that it cannot find that the Applicant does not meet the relevant Class 1 and Class 2 medical standards by reason of drug or substance use.
Personality Disorder
Concerning an alleged personality disorder, the Tribunal finds that the evidence does not enable such a finding to be established. The Applicant contends that there is no history of a personality disorder and points quite properly to the fact that Dr Atherton in his report, which it is fair to say is the report that provides the greatest hurdle for the Applicant to cross, states that he was not able to make an absolute diagnosis of a personality disorder. He certainly flagged it in his report.
The Respondent in its Outline of Submissions conceded that at that time and without further investigation, it is not possible to advance the definitive proposition that a diagnosis of personality order is established, and therefore a basis for denial of the medical certificates.[31] The Respondent was keen to highlight the fact that there are real concerns arising from the inconsistencies in the Applicant’s history that he has provided, which is also evident from some of the other medical material in evidence. The Tribunal has acknowledged these inconsistencies.
[31] Paragraph 63 of the Respondent’s Outline of Submissions dated 25 October 2019 is referred to.
However, there is not any other evidence which enables the Tribunal to rely upon this condition. Dr Chowdary saw him in September 2014 and did not diagnose such a condition but stated “I do wonder about his underlying personality”. Dr Golden had one session with the Applicant in April 2018 and did not refer to such a condition at all. Dr Richards, who considered what she described as “significant inconsistencies” in the history provided by the Applicant to the Respondent, reached the conclusion that given the lack of evidence, the benefit of the doubt must be afforded to the Applicant that he has not, and is not deliberately misleading the Respondent. She then considered specifically the Applicant’s mental health and noted concerns about the possibility of a personality disorder, or traits which had not been substantiated through psychiatric or neuropsychological assessments. She expressed no opinion on the topic. Presumably, had it been of some concern to her she would have both expressed an opinion and made recommendations for further investigation, including appropriate levels of psychiatric evaluation to definitively find out whether the Applicant had such a condition.
Given these circumstances, the Tribunal cannot conclude that the Applicant does not meet the Class 1 or Class 2 medical standards by reason of an alleged personality or anxiety disorder.
CONCLUSION
The Tribunal finds that based on the available evidence, the Applicant’s head injury is a safety relevant condition within the meaning of regulation 67.015 of the CASR and therefore the Class 1 and Class 2 medical standards 1.1 and 2.1, 1.4 and 2.4 and 1.8 and 2.8. The Tribunal finds that the Applicant does not meet the medical standard for the issue of a Class 1 or Class 2 medical certificate.
The Tribunal also finds that the Applicant fails to meet those standards to an extent that would likely endanger the safety of air navigation.
The Tribunal also concludes that due to the nature of the head injury, there are no conditions that could be imposed upon a medical certificate that would ameliorate the threat posed to air safety.
By reason of the foregoing matters the Tribunal affirms the reviewable decision.
98. I certify that the preceding 97 (ninety seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member and Dr S Lewinsky, Member
....[sgd]........................................................
Associate
Dated: 6 May 2020
Date of hearing: 25 October 2019 Applicant: In Person Advocate for the Respondent: Ms Carol Swain
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