Mulholland and Civil Aviation Safety Authority

[2006] AATA 452

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 452

ADMINISTRATIVE APPEALS TRIBUNAL          № T2005/131

GENERAL ADMINISTRATIVE DIVISION

Re:            TERRENCE GERALD MULHOLLAND

Applicant

And:         CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal:       Mr Egon Fice, Member

Date:24 May 2006

Place:Hobart

Decision:The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

AVIATION –medical certificate – special conditions – syncope – hypertension – hypotension – anti-hypertensive therapy – safety-relevant condition

Civil Aviation Act 1988 s 31(1)(b)

Civil Aviation Safety Regulations 1998

Civil Aviation Regulations 1988 (Cth)

REASONS FOR DECISION

24 May 2006  Mr Egon Fice, Member

1.      After Mr Mulholland had suffered a series of syncopes, the Civil Aviation Safety Authority (CASA) issued him with a Civil Aviation Medical Certificate which had endorsed upon it restriction 8, requiring Mr Mulholland to fly as or with a qualified co-pilot. This applied to both his Class 1 and Class 2 Civil Aviation Medical Certificates. In a letter dated 20 July 2005, Mr Mulholland asked CASA to clarify the extent of that restriction, in particular, whether he was able to conduct pilot licence testing at the general flight progress test (GFPT) and private pilot’s licence (PPL) levels. CASA responded by letter dated 16 August 2005, indicating that new medical certificates would be issued to Mr Mulholland with an additional condition, Condition 11, which provided that Mr Mulholland could conduct a PPL flight test but only if the student signed a note that he or she was fully informed that Mr Mulholland may suffer sudden collapse at any time. Mr Mulholland sought review of CASA’s decision on 28 August 2005, explaining that he wished to conduct GFPT flight tests and also to have his position as the Chief Flying Instructor of the Aero Club of Southern Tasmania restored. In a decision dated 7 September 2005, CASA declined to change Condition 11 on Mr Mulholland’s aviation medical certificates. He therefore seeks a review of that decision pursuant to s 31 (1) (b) of the Civil Aviation Act 1988 (the Act).

BACKGROUND

2.      Mr Mulholland first suffered a syncopal attack on 28 September 1996 when he lost consciousness for about 30 seconds after a period of considerable exertion when cutting down a tree.  In a medical examination conducted on 25 September 1996, Mr Mulholland denied using any form of anti-hypertensive therapy.  However, Dr D. McTaggart, a cardiologist, who saw Mr Mulholland shortly after the incident, reported that Mr Mulholland intermittently used Atenolol for hypertension and that he had probably taken a half tablet within 24 hours of the syncopal event.  Prior to this incident, Mr Mulholland had no history of blackouts.  Dr McTaggart did note Mr Mulholland’s blood pressure was 150/100 at that time.

3.      Dr I. Hoyle, who was Mr Mulholland’s general practitioner, and who is also a designated aviation medical examiner (DAME), said the most probable diagnosis was reactive hypoglycaemia.  Mr Mulholland was also examined by Dr S.J. Siejka, a consultant neurologist, who concluded that Mr Mulholland had suffered a single vaso-vagal syncopal attack precipitated by partial hypoglycaemia and possible partial dehydration.  He also suggested that Mr Mulholland should be allowed to return to normal activities.

4.      On 10 February 1997 a witness reported that Mr Mulholland collapsed in a Kmart store in Launceston and was unconscious for a short period of time.  Mr Mulholland was asked to contact Dr Hoyle so that the necessary investigations could be initiated.

5.      In a report dated 12 June 1997 Dr Hoyle stated that he had examined Mr Mulholland on 7 May 1997 and that his blood pressure was 110/80 lying down and 105/75 standing.  He also reported that Mr Mulholland had been taking 50mgs of Atenolol per day for hypertension.  Atenolol is described as a beta-blocker.  Dr Hoyle’s conclusion was that Mr Mulholland had suffered a syncopal attack after he had taken an unusually long drag on his cigarette before putting it out and entering the Kmart store.  Dr Hoyle advised Mr Mulholland to withhold anti‑hypertensive treatment indefinitely and have his blood pressure checked at regular three‑monthly intervals.  Dr Hoyle ceased Mr Mulholland’s Atenolol and commenced him on Solprin, 150mgs per day.  Solprin is a form of Asprin.  Mr Mulholland’s blood pressure at that time was 130/80.

6.      Dr McTaggart examined Mr Mulholland again following his second episode of loss of consciousness.  In a report dated 19 August 1997 Dr McTaggart said that Mr Mulholland had a tendency to vasodepressor syncope, which is a tendency to experience an unexpected drop in blood pressure and pulse rate, resulting in syncope.  He suspected that Mr Mulholland had a normal cardiovascular system and that ordinarily he would treat the situation with a beta-blocker which, he thought, Mr Mulholland had taken intermittently in the past.

7.      On 25 September 1997, Dr S.I. Emmett, a DAME, reported seeing Mr Mulholland for his six‑monthly medical examination.  Dr Emmett recorded Mr Mulholland’s two episodes of loss of consciousness and also that in an exercise ECG, it was noted that he had suffered a bundle branch block causing the test to be aborted.  Dr Emmett requested that Dr P. Illes conduct an angiogram as soon as possible.

8.      Mr Mulholland completed a medical questionnaire on 18 September 1997 in which he noted that he was not using anti-hypertensive medication.

9.      A coronary angiography performed on Mr Mulholland on 1 October 1997 by Dr  Illes disclosed that Mr Mulholland had essentially normal coronary arteries.

10.     Mr Mulholland completed his next six‑monthly medical on 19 March 1998.  Dr Emmett reported that although he passed Mr Mulholland on the medical examination, he noted with concern that Mr Mulholland was again smoking cigarettes.  He also noted that Mr Mulholland continued to take half a tablet of Atenolol per day.  According to Dr Emmett, Mr Mulholland told him that he started taking Atenolol many years ago although it was only when he decided to take a full tablet per day that he started developing his dizzy spells.  Dr Emmett was of the view that it was not controlling his blood pressure.

11.     Mr Mulholland was then examined by Dr J. Vohra, at Epworth Consulting Rooms in Melbourne.  In a report dated 12 August 1998, Dr Vohra noted that upon examination, Mr Mulholland’s blood pressure was 170/105 lying down and 180/105 standing.  In his opinion, Mr Mulholland needed treatment for hypertension.

12.     Dr Emmett saw Mr Mulholland on 16 September 1998 for a renewal of his medical certificate.  His blood pressure on that occasion was 155/90.  Dr Emmett also reported that Mr Mulholland had stopped using Atenolol, believing that it had been responsible for his dizzy spells.  Dr Emmett explained to Mr Mulholland in detail the risks of hypertension and the anti-hypertensive drugs which were considered safe for use in aviation.  He advised Mr Mulholland to speak to his own general practitioner, Dr Hoyle, for long term treatment.

13.     Mr Mulholland was again examined by Dr Illes, who reported on 4 March 1999 that Mr Mulholland’s blood pressure was 150/80.  Dr Illes also noted that at that time, Mr Mulholland had no left bundle branch block and believed this may have been related to Mr Mulholland’s previous use of Atenolol.  He noted that Mr Mulholland was using Monopril for his hypertension.  Monopril is a trade name for Fosinopril which is an ACE inhibitor.  This was confirmed by Mr Mulholland in a medical questionnaire which he completed on 16 March 1999.

14.     In a report dated 19 August 1999 Dr Illes stated that a sestamibi scan on Mr Mulholland was entirely normal and that he was totally asymptomatic.  Looking at a medical questionnaire completed by Mr Mulholland on 3 February 2000, he again noted that Mr Mulholland was using Monopril, 10mgs per day, by way of anti-hypertensive therapy.  His blood pressure on that day was 120/80.  Dr Illes confirmed that Mr Mulholland would be fit to fly until his next review.

15.     Mr Mulholland was medically reviewed by Dr Emmett on 12 July 2000.  His blood pressure was 140/80 and he indicated that he continued to use Monopril, 10mgs daily.

16.     Mr Mulholland was examined again on 22 January 2001.  Apparently, he did not report a further syncopal episode which occurred in November 2000.  According to a report provided by Dr M.W. Skinner on 8 February 2001, following a further stress sestamibi conducted by Dr Nicholson in Hobart, Dr Nicholson reported that Mr Mulholland had another syncopal episode some three months prior to those tests being conducted.  In his report, Dr Skinner said:

I have reviewed Terry [Mulholland] from another DAME’s point of view and taken a detailed history.  He certainly gives a history of “poor” compliance with medication and his "syncopal" episodes are all brief but of concern in that he can't remember what actually happened.  The last was 3 months ago…

Dr Skinner suggested that it was prudent and appropriate that Mr Mulholland be examined by Dr P. Habersberger, a Royal Australian Air Force (RAAF) and CASA cardiologist.  Dr Skinner concluded that he was in no doubt that Mr Mulholland needed better blood pressure control by appropriate medication.  Apparently, he discussed with Mr Mulholland the need for excellent compliance with therapy.

17.     Dr Nicholson provided a report to Dr Emmett dated 19 February 2001 in which he expressed serious reservations about Mr Mulholland’s continued flying as a commercial pilot.  He reported that Mr Mulholland had poorly controlled hypertension and his compliance with therapy was less than ideal.

18.     On 17 July 2001, upon examination for his six‑monthly medical, Mr Mulholland had a blood pressure reading of 140/85.  The report also noted that he was now using Betalol, 50mgs per day, for his hypertension.  Betalol is a trade name for Metoprolol which is a beta-blocker.  His next six‑monthly medical, conducted on 15 January 2002, also indicated he was using Betalol and his blood pressure was 130/80.

19.     Mr Mulholland was referred to Dr L. Bowman, a cardiologist, following another syncopal episode which occurred while he was in his caravan.  According to Dr Bowman, Mr Mulholland felt unwell, took two Asprin, stood up and blacked out.  He reported to Dr Bowman that he was not presently on any medication.  Physical examination by Dr Bowman revealed that Mr Mulholland’s blood pressure was 200/98.  Dr Bowman’s opinion was that the exact cause of his syncope remained obscure but that it could not be assumed that it was only due to beta-blockers as he was on quite a low dose and he had symptoms even when taking Monopril.  Dr Bowman opined that postural hypotension was the most likely cause but he thought other possible causes needed to be excluded.

20.     In a report dated 15 February 2002 Dr Bowman stated that Mr Mulholland’s creatinine was elevated at 151v.  He was examined by Dr G.S. Kirkland, a consultant physician and nephrologist, who reported on 15 February 2002 that Mr Mulholland had gradually lost renal function over the past couple of years.  There was no suggestion of a risk of renal failure in the short term.  Dr Kirkland, having conducted a further examination on 10 May 2002, reported that there was no specific treatment for Mr Mulholland’s kidney problem.

21.     Dr Emmett examined Mr Mulholland for his next aviation medical on 17 July 2002.  Mr Mulholland reported that he was not using any anti-hypertensive drug.  Dr Emmett noted that since his last stress echo, Mr Mulholland had a single syncopal attack which was of a postural nature when, not having eaten and getting out of bed and standing quickly to answer a telephone call, the attack occurred.  Dr Emmett reported that Mr Mulholland’s blood pressure had been satisfactory in the past four months and that he had no further dizzy spells.  Upon examination, Dr Emmett concluded that Mr Mulholland should pass as fit.

22.     Mr Mulholland’s next medical examination was on 21 January 2003.  Dr Emmett reported, on 23 January 2003, that Mr Mulholland was not suitable for re‑certification and that his condition required further investigation.  He noted that Mr Mulholland was having dizzy spells, approximately once every two months.  He was concerned that the frequency of those dizzy spells had increased and that no cause had been found.  Dr Emmett sought a further review by Dr Habersberger, for an investigation of what he believed was a possible imminent heart block.  He had organised a routine review from the cardiologist, Dr Bowman, and was waiting for his findings.

23.     Dr Habersberger examined Mr Mulholland and provided a report dated 10 February 2003.  He noted that Mr Mulholland’s blood pressure was 170/100 lying down and 195/100 after five minutes rest.  His standing blood pressure was 200/110.  Dr Habersberger reported that there was no evidence to suggest that there was any organic pathology responsible for Mr Mulholland’s dizzy spells.  He believed that they were probably related to postural hypotension and they may have been aggravated by the fact that he had been on a beta-blocker.  He suggested that Mr Mulholland cease taking his beta-blocker entirely and, if he required treatment for hypertension, an ACE inhibitor or an angiotensin receptor blocking drug should be used.  He could see no indication why Mr Mulholland should be restricted to flying as a co-pilot or with a co-pilot.

24.     Dr Habersberger examined Mr Mulholland again on 22 December 2003. He reported that although Mr Mulholland had one episode of light headedness, his medication was changed so that he now took Metroprolol, 25mgs, of an evening.  He noted that Mr Mulholland’s blood pressure seemed to be reasonably well controlled, although the blood pressure figures he obtained were higher than those which Mr Mulholland had obtained himself at home.

25.     Mr Mulholland’s next medical examination took place on 8 January 2004.  He was examined by Dr Tooth, a DAME.  His blood pressure was 130/85 and although Mr Mulholland said he was not taking any anti-hypertensive drugs, Dr Tooth noted that Mr Mulholland was using Metoprolol, 50mgs, for symptomatic relief of palpitations.

26.     Dr Tooth examined Mr Mulholland again on 17 December 2004.  He reported that Mr Mulholland’s blood pressure was 130/80.  His report also indicated that Mr Mulholland was using Coversyl, 2mgs daily; Indapamide, 1.5mgs and Metoprolol, 50mgs, half in nocte.  Coversyl is a trade name for Perindopril which is an ACE inhibator.  Indapamide is a diuretic.  This is the first time it was noted that Mr Mulholland was using a diuretic.

27.     On 29 December 2004, Mr Mulholland lost consciousness while driving a car, which then left the road and rolled over.  Mr Mulholland suffered retrograde and anti- grade amnesia.  He was taken to Royal Hobart Hospital and admitted overnight although the investigations then completed could find no cause for the loss of consciousness.  He was referred to Mr J.A. Waterston at Cabrini Medical Centre.  Mr Waterston reported that he did not think that there was a primary neurological cause for Mr Mulholland’s blackouts, which appeared to be related to cardiovascular collapse.  Mr Waterston also noted that the other blackouts which Mr Mulholland had suffered appeared to have been brief and he did not have any warning of the onset of those blackouts.  He also said that Mr Mulholland could remember one episode occurring after he sat down following vigorous exertion.  Another occurred in a supermarket and Mr Mulholland also remembered finding himself on a wooden pontoon beside one of his aeroplanes with a laceration on his head.  Apparently, Mr Mulholland also told Mr Waterston that there were several episodes that he experienced around the house and that one episode occurred in the morning after a heavy alcohol intake, while he was sitting at the breakfast table.

28.     In a report dated 11 February 2005 Dr R. Liddell of CASA informed Mr Mulholland that he failed to meet the required medical standards and a Class 1 medical certificate would not be issued.  Dr Liddell said in his letter that Mr Mulholland might be granted a special medical certificate which restricted him to multi-crew operations or as an approved testing officer provided that he did not conduct testing for ab initio training.  Mr Mulholland signed an undertaking to comply with those restrictions which were then placed on his medical certificate.  His Class 2 medical certificate was also re-validated for six months with the condition that he flew only as or with a co‑pilot.

29.     Mr Mulholland was reviewed again by Dr Habersberger in May 2005.  Dr Habersberger reported that there had been no clarification as to the cause of his syncope and that he had been asymptomatic since last seen.  Dr Habersberger reported that he was surprised that the restrictions placed on Mr Mulholland by CASA were so severe.

30.     On 17 June 2005 Mr Mulholland wrote to CASA explaining that he had been the Chief Flying Instructor of the Aero Club of Southern Tasmania for the past five years.  Because CASA had prohibited him from acting as co-pilot or testing officer for the GFPT and student levels of licences, he was no longer acceptable as a Chief Flying Instructor.  The Flying School had therefore been downgraded to a private level and could no longer conduct commercial training.

31.     By letter dated 16 August 2005, CASA advised Mr Mulholland that it had been decided to issue a new medical certificate with the addition of Condition 11 which qualified the multi-crew condition already endorsed on his medical certificates.  Condition 11 allowed Mr Mulholland to conduct a final PPL flight test but only if a student signed a note that he or she was fully informed that Mr Mulholland may suffer a sudden collapse at any time.

32.     At the hearing of this matter, Mr Mulholland also volunteered that he had suffered a further syncope on 3 March 2006 while he was driving his car.  It resulted in another accident in which his motor vehicle was written off.  Apparently, he drove into the rear of another vehicle.  He lost consciousness and he could not remember the accident occurring.  He was taken by ambulance to hospital.  At the time, Mr Mulholland said that the only medication he was taking was Coversyl, which is an ACE inhibitor.

CONSIDERATIONS

33.     Applicants for both a Class 1 and Class 2 medical certificates are required to demonstrate that they have no safety relevant condition of any of the following kind that produces any degree of functional incapacity or risk of incapacitation:

(a)abnormality;

(b)a disability or disease (actival or latent);

(c)an injury;

(d)a sequelae of an accident or surgical operation (reg 67.150 and reg 67.155 of Civil Aviation Safety Regulations 1998 (CSR)).

34.     The term safety-relevant is defined in reg 67.015 in the following way:

For the purposes of this Part, a medically significant condition is safety‑relevant if it reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.

35.     Regulation 67.195 of the CSR permits CASA to issue a medical certificate to a person subject to any condition that is necessary in the interests of safety of air navigation, having regard to the medical condition of the person. 

36.     I find that Mr Mulholland’s medical condition is likely to reduce his ability to exercise some privileges of an aviation licence holder.  Therefore, as he suffers from an abnormality which fits squarely within the definition of safety-relevant, it is clear that he does not meet the medical standard for a Class 1 or Class 2 medical certificate.  In those circumstances, it is entirely appropriate that a special condition or conditions be applied to Mr Mulholland’s medical certificates.  The only question is whether the conditions now imposed on Mr Mulholland’s civil aviation medical certificates are appropriate in the interests of the safety of air navigation.

37.     Of major concern to CASA is the fact that despite numerous medical examinations and tests, the cause of Mr Mulholland’s syncopal episodes has not been established.  Nevertheless, it was reasonably clear from Mr Mulholland’s evidence that he considers that there are two causes of his medical problem.  According to Mr Mulholland, the principal cause of his problem is the anti‑hypertensive drugs which have been prescribed for him.  Mr Mulholland obtained from Dr Hoyle product information for the drugs which have been prescribed for him and the side‑effects which may be experienced when using them.  For example, Coversyl, which is an ACE inhibitor, has a less common side‑effect which is described as dizziness, light headedness or fainting (signs of low blood pressure).  Atenolol, which is sold under the brand name Tenormin, is a beta‑blocker.  Its more common side‑effects may include dizziness, fatigue, nausea, slow heart beat.  Less common side‑effects may include dizziness upon standing up, light headedness, low blood pressure and vertigo.  A special warning is also contained in the product information brochure which states that persons who suffer from kidney disease should use Tenormin with caution.  Tenormin may also cause postural hypotension (which may be associated with syncope).  Indapamide, which is sold under the brand name Natrilix, belongs to a group of medicines called chlorosulphamoyl diuretics.  It is prescribed for high blood pressure and the literature indicates that caution should be used when taking Natrilix and in particular that the user must drink enough water during exercise and hot weather.  This, it is said, will help avoid any dizziness or light headedness caused by a sudden drop in blood pressure.  The literature also states that the user may feel light headed or dizzy when commencing to take Natrilix because blood pressure will fall.  The side‑effects include dizziness and light headedness (postural hypotension).  The literature also indicates that where a diuretic is added to the therapy of a patient receiving an ACE inhibitor, the anti‑hypertensive effect is usually additive.  It is stated that if it is not possible to discontinue the diuretic, the starting dose of the ACE inhibitor should be reduced and the patient closely observed for several hours following the initial dose of the ACE inhibitor and until the blood pressure has stabilized.  For persons with renal failure, it is suggested that treatment begin with 2mg doses daily.  The dosage should be adjusted according to creatinine clearance.  Creatinine and potassium levels should be closely monitored.  This is in fact Mr Mulholland’s second point, which he believes is causing his problems.  Because he has a slightly reduced renal function, he believes this may be adding to the hypotensive side‑effects that the drugs he has been taking for hypertension are having.

38.     Dr Sham Tak Sum, a medical officer employed by CASA, gave evidence regarding the use of anti‑hypertensive drugs.  Dr Sham has considerable experience in aviation medicine, having served in aviation medicine practices, mostly on a full‑time basis since 1979.  He served for six years as an RAAF medical officer.

39.     According to Dr Sham, persons over the age of 65 years should aim for a blood pressure reading of no more than 140/90mmhg.  The major classes of anti‑hypertensive drugs are diuretics, beta-blockers, alpha-blockers, vasodilators, calcium-channel blockers, ACE inhibitors and angiotensin receptor blockers.  The evidence discloses that Mr Mulholland has used and continues to use a range of anti‑hypertensive drugs.  In fact, it also discloses that when Mr Mulholland stops taking any anti-hypertensive medication, his blood pressure rises significantly.  For example, in January 2005 when Dr Emmett reported that Mr Mulholland stopped taking his medication, his blood pressure reading was 155/95.  According to Dr Sham, this indicates grade 1 hypertension.  In December 2005, when his blood pressure reading was taken by Dr Parks, it was 180/100.  According to Dr Sham that is a high blood pressure reading and it shows that Mr Mulholland’s blood pressure was not being properly controlled.  When Mr Mulholland was examined on 6 February 2002 by Dr Bowman, his blood pressure was recorded as 200/98.  According to Dr Sham, that indicates severe hypertension.

40.     Mr Mulholland said that he was not taking any anti‑hypertensive drugs currently because he was attempting to control his hypertension with a lifestyle change.  He attributed his high blood pressure readings to other pressures and as being one off readings.  Although Dr Sham agreed that where blood pressure is only mildly elevated (150/90mmhg or less), it can be successfully treated by adopting lifestyle changes, that was only successful in about one third of cases.  He said that where problems are more severe, anti-hypertensive drugs needed to be prescribed.  Furthermore, a therapeutic plan ought to be implemented in all patients with hypertension.  While part of that plan would constitute modification of lifestyle, it could only be treated in conjunction with anti‑hypertensive drugs. 

41.     The major problem for Mr Mulholland appears to be the fact that he seems to have formed the view that the anti-hypertensive drugs which he has been taking are in fact the cause of his syncopal attacks.  For that reason, it appears that Mr Mulholland has been varying the amount of medication that he has been taking, without first consulting a medical practitioner.  Although Mr Mulholland strenuously denied that to be the case and he denied that he was in effect self medicating, he did express caution about dealing with the medical profession.  He did confirm that he stopped taking beta‑blockers in 1998 and then subsequently advised Dr Hoyle of that fact.  Dr Skinner, in a report dated 8 February 2001, states that Mr Mulholland gives a history of poor compliance with medication.  Further, in a letter dated 3 November 2005, Mr Mulholland stated that:

…I had mistrusted the level of medication that was prescribed by the doctors and had reduced the amounts of medication that I was taking.

Mr Mulholland attempted to convey in his oral evidence that he only reduced his medication with the concurrence of either Dr Emmett or Dr Hoyle.  However, when he was asked about that, Dr Emmett said that he recalled that Mr Mulholland stopped using Atenolol without being told to do so.  He did tell Dr Emmett after he had stopped using that drug.  Dr Emmett said that he did not endorse that action as it put Mr Mulholland at higher risk.  It also appears that when Mr Mulholland recently stopped using all medication, he simply told Dr Emmett that was the case after he had decided to take that action.

42.     In my opinion, the evidence quite clearly points to the fact that Mr Mulholland does self-medicate because he believes that the anti-hypertensive drugs are the cause of his syncopal episodes.

43.     The medical practitioners who have treated Mr Mulholland considered the possibility that the beta‑blockers that Mr Mulholland was prescribed may have been the cause of his fainting and dizzy spells.  However, Mr Mulholland’s problem seems to have continued despite the fact that, since about 2003, after Dr Habersberger recommended to Dr Emmett that Mr Mulholland cease using beta‑blockers, he has used an ACE inhibitor such as Coversyl.  When Mr Mulholland had both of his car accidents, on 29 December 2004 and 3 March 2006, he was only using an ACE inhibitor and a diuretic.  Mr Mulholland did suggest that the cause of his problem was the use of a diuretic interacting with an ACE inhibitor.  This, according to Mr Mulholland, combined with his impaired renal function, was causing hypotension.  According to Dr Sham, it is correct that the combined use of those medications can cause hypotension.  However, he was of the view that was not the cause of the syncopes because:

(a)when most of the syncopes that Mr Mulholland suffered were recorded, he was using a beta-blocker and later an ACE inhibitor without the diuretic;

(b)that would not explain the pre-December 2004 syncopes and he only started using diuretics at or before December 2004 at a very low dose rate.  If there were any complications caused as a result of the interaction between a diuretic and an ACE inhibitor, that would have manifested itself very early in the course of the new treatment, in fact, within a number of hours after combining those two drugs;

(c)in any event, Mr Mulholland’s renal impairment was not unusual for his age and in fact, it could be described as normal for his age; and

(d)when Mr Mulholland suffered a syncope in December 2004, he was essentially using Coversyl which is not associated with any significant reduction in blood pressure thereby resulting in hypotension.

44.     According to Dr Sham, the major problem with Mr Mulholland is that, because of his tendency to self-medicate, there has not been a proper opportunity to implement a therapeutic plan aimed at both blood pressure reduction and the reduction of overall cardiovascular risk.  Furthermore, the cause of Mr Mulholland’s syncopal episodes has not been determined, despite the fact that he has had relatively frequent episodes over the past 10 years.  Dr Sham said that because the cause has not been established, there was no reason why Mr Mulholland will not continue to suffer from syncopal episodes.  In Dr Sham’s view, merely changing his lifestyle will not entirely alleviate the risk of Mr Mulholland having further attacks.  I must say that I agree with Dr Sham, having considered all of the medical evidence put before me.

45.     Although CASA has agreed to allow Mr Mulholland to continue to hold civil aviation medical certificates, the restrictions now placed on Mr Mulholland require him to fly as or with a qualified co-pilot and that he may only conduct final PPL flight tests if a student signs a note that he or she is fully informed that Mr Mulholland may suffer a sudden collapse at any time.  Mr Mulholland claims that this restriction is far too harsh and it has severely curtailed his ability to continue to earn an income from aviation.  He also expressed concern that the aero club, of which he was formerly the Chief Flying Instructor, is now limited to conducting training for private pilots only and that he therefore ought to be permitted to conduct the GFPT flight tests.

46. Irrespective of any hardship which may result from the restrictions placed on Mr Mulholland, CASA’s principal concern must be the safety of air operations. That is clearly expressed in s 9A of the Civil Aviation Act 1988 which, relevantly, provides:

(1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. . . .

47.     The aim of the GFPT is to demonstrate a candidate’s ability to safely and confidently handle the aircraft to the standard specified in the Day VFR Syllabus – Aeroplane and Australian National Competency Standards for Private Pilots.  The minimum aeronautical experience required of a candidate for the GFPT is a total of 20 hours flying time of which 5 hours must be in command and 2 hours instrument flying.  Mr O Richards, a Flying Operations Inspector employed by CASA, pointed out in a witness statement that after a student has passed the GFPT, he or she will engage in further training that will lead to a flight test for the issue of the PPL.  That further training focuses on navigational exercises which of course involve flights outside the local area where the student has conducted his primary training.

48.     After a student has successfully completed the GFPT, that student is permitted to carry passengers while flying as a pilot in command, provided that the flight takes place solely within the student/pilot area limit, or, in other words, the local flying training area (Civil Aviation Regulations 1988 5.72 (CAR)).  For that reason, according to Mr Mulholland, it is not appropriate to prevent him from conducting the GFPT, because a student who successfully completes that test may fly with passengers in the local training area.  Mr Mulholland submitted that it makes no sense that he can fly as a passenger with a pilot who has completed the GFPT but he is not allowed to fly in the aircraft when the student is being tested for the GFPT.  However, Mr Mulholland’s argument fails to recognize that not every student who conducts a flight test for the GFPT in fact passes at their first attempt.  Simply because a student undertakes a GFPT does not necessarily mean that the student has achieved the standard necessary to pass that test.  In addition, a student with a mere 20 hours flying experience, irrespective of the level of competency achieved, would be severely distracted if the testing officer lost consciousness in the course of a flight test.  It appears to me to be overwhelmingly obvious that such an event is highly likely to be detrimental to the safety of that flight.  Furthermore, there is no guarantee that in losing consciousness, Mr Mulholland would not in some way interfere with the controls of the aircraft.  Although Mr Mulholland is permitted to conduct tests for the PPL, and students undergoing that test are far more experienced and competent than a student attempting the GFPT, my concerns are not lessened by that fact.  However, the restriction placed on Mr Mulholland’s medical certificates requires his condition to be disclosed to an intending examinee for the PPL and that person must indicate in writing that he or she has been fully informed of Mr Mulholland’s condition.  Although I have some reservations about allowing Mr Mulholland to continue to test students for the PPL, I would not suggest that CASA should alter its position regarding that restriction.

49.     As for conducting advanced testing, such as instrument ratings and multi‑engine endorsements, while I continue to have concerns about having Mr Mulholland act as an approved testing officer for such tests, I accept that pilots with those higher levels of experience may be able to cope in the event that Mr Mulholland loses consciousness in the course of a flight.  However, it does not appear to me to be appropriate that Mr Mulholland should retain the position of Chief Flying Instructor of a flying school.  A Chief Flying Instructor is required to conduct a number of functions including the entire range of flight testing conducted by a flying school.  Because of the limits placed on Mr Mulholland due to his medical condition, it is reasonably apparent that he is not able to do that.

CONCLUSION

50.     I have no doubt that at this time the restrictions placed on Mr Mulholland’s civil aviation medical certificates are appropriate.  This situation should remain until the cause of Mr Mulholland’s syncopal episodes is firmly established and his hypertensive condition is fully controlled.  That could only happen if a therapeutic plan for Mr Mulholland is implemented by his general practitioner and that plan is rigidly enforced.  If that were to resolve Mr Mulholland’s medical condition, then of course consideration should be given to relaxing the restrictions on his medical certificates.  Until such time, in my opinion, the medical restrictions placed on Mr Mulholland’s Class 1 and Class 2 civil aviation medical certificates are appropriate.  For that reason, I would affirm the decision made by CASA on 7 September 2005.

I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)     Catherine Thomas

Clerk

Dates of Hearing:  21 April 2006 &

24 April 2006

Date of Decision:  24 May 2006
Advocate for the applicant:          Self‑represented

Advocate for the respondent:       Mr A. Anastasi

Solicitors for the respondent:        Office of Legal Counsel