Re Mulholland and Civil Aviation Safety Authority
[2007] AATA 1952
•14 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1952
ADMINISTRATIVE APPEALS TRIBUNAL )
)No T 200600173
GENERAL ADMINISTRATIVE DIVISION ) No T 2007/2778
Re TERRENCE GERALD MULHOLLAND Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Ms Ann Cunningham, Senior Member
Mr Egon Fice, MemberDate14 November 2007
PlaceHobart
Decision The decision under review is affirmed. ..............................................
Senior Member
CATCHWORDS
AVIATION - Class 1 and 2 medical certificates subject to conditions - episodes of syncope - unexplained cause - safety relevant condition - decision under review affirmed
Civil Aviation Act 1988
Civil Aviation Safety Regulations 1998, Part 67
Administrative Appeals Tribunal Act 1975, ss.25(1), 42A, 42B, 42C and 42D
Re Terrence Gerald Mulholland and Civil Aviation Safety Authority [2006] AATA 452.
Re Reddish and Civil Aviation Safety Authority [1999] AATA 721
Hall and Civil Aviation Safety Authority [2004] AATA 21
Re Window and Civil Aviation Authority 1999 AATA 525
REASONS FOR DECISION
14 November 2007 Ms Ann Cunningham, Senior Member
Mr Egon Fice, Member1. Mr Mulholland filed four separate applications seeking the review of various decisions made by the Civil Aviation Authority (CASA) with respect to the issue of medical certificates for his private pilot licence. Two of the four applications for review are before the Tribunal for decision, Mr Mulholland having withdrawn two earlier applications that related to decisions made by CASA on 4 September 2006 and 4 October 2006. The two remaining applications, application T 200600173 and application T 2007/2778 relate to decisions made by CASA as outlined below.
Application T 200600173
2. On 10 July 2006 CASA issued Class 1 and 2 medical certificates to Mr Mulholland which were expressed to expire on 17 May 2007. On 8 November 2006 CASA made a decision to cancel the licences. Mr Mulholland filed an application for review of this decision on 14 November 2006.
Application T 2007/2778
3. On or about 11 May 2007 Mr Mulholland applied for the issue of Class 1 and 2 medical certificates. On 12 June 2007 CASA made a decision to issue Class 1 and 2 medical certificates to Mr Mulholland subject to conditions. On 29 June 2007 Mr Mulholland filed an application for review of this decision, contending that:
(a) the conditions imposed are unnecessarily restrictive and prevent him from earning a living;
(b) the interpretation of the medical evidence is incorrect; and
(c) CASA has acted contrary to the Civil Aviation Act 1988 and to Member Fice's ruling of 24 May 2006.
4. In its reasons for decision CASA stated inter alia that Mr Mulholland has :"a safety relevant condition being an abnormality that is unexplained that produces a degree of functional incapacity or a risk of incapacitation". Further that Mr Mulholland has "a high risk of losing consciousness flying an aircraft". CASA considered that Mr Mulholland's medical condition is likely to reduce his ability to pilot an aircraft or that allowing him to fly would likely endanger the safety of air navigation contrary to the provisions of the Civil Safety Regulations 1998. CASA determined to issue a medical certificate subject to conditions in the interests of the safety of air navigation.
Relvant History
5. Mr Mulholland first experienced syncope in 1996. After his first syncopal attack, Mr Mulholland continued to suffer from syncope intermittently. Upon completing an annual aviation medical examination, this was reported to CASA. As a result, CASA issued Mr Mulholland with conditional Class 1 and Class 2 civil aviation medical certificates which restricted the nature of the commercial flying which he could undertake and required him to fly only with a qualified co-pilot.
6. Mr Mulholland was dissatisfied with the restrictions placed on his medical certificates and he filed an application with the Tribunal for a review of CASA’s decision on 28 August 2005. That application was heard by the Tribunal in April 2006. On 24 May 2006, the Tribunal handed down its decision finding that the restrictions placed on Mr Mulholland’s medical certificates were appropriate. At that time, the evidence pointed to the fact that Mr Mulholland had poorly controlled hypertension and this may have played a significant part in his syncopal attacks. The Tribunal decided that the restrictions on Mr Mulholland’s Class 1 and Class 2 medical certificates should remain in place until the cause of his syncopal episodes was firmly established and that his hypertensive condition was fully controlled.
7. When Mr Mulholland renewed his Class 1 and Class 2 medical certificates in May 2006, CASA issued fresh medical certificates which expired on 17 May 2007. They contained the same restrictions which had previously been applied to his medical certificates. At this time Mr Mulholland believed that his blood pressure was under control as he was following a plan recommended by Dr Eric Colquhoun. He therefore objected to the restrictions remaining on his medical certificates. However, before CASA dealt with his objection, on 2 August 2006 Mr Mulholland suffered another syncope while driving a motor vehicle and he hit a telegraph pole. He spent some time in hospital. When CASA learned of this incident, it suspended his Class 1 and Class 2 medical certificates. Mr Mulholland objected to the suspension and lodged an application with the Tribunal on 29 September 2006 which was identified as matter Nº T 200600142.
8. On 4 October 2006 CASA informed Mr Mulholland that because he failed to meet the medical standards for Class 1 and Class 2 medical certificates, subject to his response, a decision had been made to cancel both certificates. Mr Mulholland was given 30 days from the date of notification to provide CASA’s Aviation Medicine Section with any information, including further medical reports, which might demonstrate that he did meet the medical standard; or explain why the issue of a medical certificate would not adversely affect the safety of air navigation. On 23 October 2006, Mr Mulholland responded to CASA’s letter indicating that he would once again seek a review of CASA’s decision despite the fact that CASA had not at that time made a final decision to cancel his licence. Mr Mulholland lodged another application with the Tribunal which is identified as matter Nº T 200600156. CASA issued a cancellation notice on 8 November 2006 and Mr Mulholland lodged a third application with the Tribunal seeking a review of the cancellation decision. That application is identified as matter Nº T 200600173.
9. On 12 June 2007, after Mr Mulholland had undergone an aviation medical examination, CASA made a fresh decision to issue Class 1 and Class 2 medical certificates to Mr Mulholland with conditions. Those conditions strictly limited the circumstances in which Mr Mulholland could fly as a pilot, particularly as far as his Class 1 medical certificate was concerned. On 29 June 2007 Mr Mulholland lodged a fourth application to the Tribunal seeking review of the conditions imposed on his medical certificates. That application is identified as matter Nº T 2007/2778.
10. Mr Mulholland withdrew applications Nº T 200600142 and Nº T 200600156. He continues to pursue the remaining two applications. However, as the medical certificates the subject of application Nº T 200600173 expired by the effluxion of time on 17 May 2007, CASA contended that because a decision would have no practical utility, the Tribunal should not review it. Furthermore, CASA contended that the decision which is the subject of application Nº T 2007/2778 has in any event superseded CASA’s decision to cancel the earlier medical certificates.
11. The first issue for the Tribunal is to decide whether it should determine the correctness of CASA’s decision to cancel Mr Mulholland’s Class 1 and Class 2 medical certificates on 8 November 2006. Despite CASA’s protestations, Mr Mulholland has urged the Tribunal to proceed with that determination.
12. The second issue which the Tribunal needs to address is whether the conditions imposed by CASA on Mr Mulholland’s Class 1 and Class 2 medical certificates on 12 June 2007 are necessary in the interests of the safety of air navigation.
RELEVANT BACKGROUND
13. The significant events which occurred between 1996 and April 2006 are set out in some detail in the Tribunal’s decision in Re Terrence Gerald Mulholland and Civil Aviation Safety Authority [2006] AATA 452√. That background need not be repeated here.
14. We have briefly referred to Mr Mulholland’s motor vehicle accident which led to CASA’s decision to cancel his Class 1 and Class 2 medical certificates on 8 November 2006. It is of some utility to look at that event in more detail.
15. Mr Mulholland was medically examined on 17 May 2006 by his regular Designated Aviation Medical Examiner (DAME) Dr Stanley Emmett. This was a routine six‑monthly aviation medical examination. Dr Emmett said in his report that Mr Mulholland, who was then 70 years of age, had a past medical history of intermittent dizzy spells over a period of eight years, and that numerous investigations by a number of specialists had not been able to establish a cause. He also noted that Mr Mulholland had experienced two motor vehicle accidents due to loss of consciousness in the previous 18 months, the most recent being in March 2006. Dr Emmett reported that Mr Mulholland subsequently stopped all his anti-hypertensive medications in the belief that they were the cause of his loss of consciousness and the dizzy spells. Dr Emmett also reported that Mr Mulholland had adopted a strict diet and increased his exercise hoping to control his blood pressure by natural means. Mr Mulholland was frequently recording his blood pressure at home on a self‑recording machine and the readings he produced to Dr Emmett where between 180-160/80-100. He demonstrated his blood pressure reading technique to Dr Emmett and when compared with Dr Emmett’s readings, they were within 10mm Hg of each other. On the day of examination, Dr Emmett noted Mr Mulholland’s blood pressure to be 150/90, which just happens to be at the top of the acceptable limit for aviation purposes. At that time, Mr Mulholland denied having any further dizzy spells since stopping his anti-hypertensive medication.
16. We should also record that at the Tribunal hearing in April 2006, Mr Mulholland’s evidence was that he had ceased taking anti-hypertensive drugs and that he was attempting to control his hypertension with a lifestyle change. Dr Emmett recorded that his examination of Mr Mulholland was normal except for a urinary tract infection. Mr Mulholland told Dr Emmett that he had found a new general practitioner in Hobart, Dr Eric Colquhoun, who had placed him on a strict plan for blood pressure control.
17. Immediately prior to seeing Dr Emmett on 17 May 2006, Mr Mulholland underwent a stress ECG test which was performed by Dr D.R. McTaggart, a cardiologist. Dr McTaggart recorded that Mr Mulholland’s resting ECG was normal and his blood pressure was 188/110. After seven minutes of exercise, Mr Mulholland achieved his maximum predicted heart rate of 148 and his blood pressure rose to 230/100. Dr McTaggart noted that Mr Mulholland developed 1mm of flat ST segment depression in V3 and V4 during the latter part of the test which resolved within 2 minutes of rest post exercise. He therefore recorded although it was strictly a positive ECG exercise of stress test, because of the quick reversion to normality, he accepted that the ST segment changes represented a false positive.
18. Dr Andrew Snarski performed a Sestamibi Rest/Stress study on Mr Mulholland on 30 June 2006. After seven minutes on the treadmill, Mr Mulholland’s blood pressure rose from 160/100 to 230/110. Dr Snarski reported that there was no significant ST depression during or after the stress although during the stress test, there was a sinus rhythm with transient left bundle branch block from six to eight minutes of the study.
19. On 18 July 2006, in a letter to CASA, Mr Mulholland complained about the restrictions again imposed on his medical certificates. In that letter, he said:
…
I consider that the cause of the past Syncopal Episodes has been firmly established and that the hypertensive condition is fully controlled, and that a Therapeutic Plan has been implemented as required by the AAT. Under these circumstances I can see no reason why the restrictions remain.
Mr Mulholland said that his blood pressure was in the order of 120/80 to 130/80 and that he was being monitored by Dr Colquhoun on a regular basis. He added that his improved blood pressure was due to a low sodium diet which Dr Colquhoun had recommended and which was working for him, along with other diet restrictions. Mr Mulholland also said that the reason for his syncopal episodes had been identified by Dr Colquhoun and that his explanation matched Mr Mulholland’s circumstances very well. He also said in that letter that he was not taking medication for high blood pressure or for any other reason. He repeated the statement that he did not take medication for any blood pressure problem.
20. Mr Mulholland measured and recorded his blood pressure every day in July 2006 with fairly consistent readings, averaging about 127/70.
21. On 2 August 2006 at approximately 4.00 p.m. Mr Mulholland lost consciousness while driving his motor vehicle which ran off the road hitting a telegraph pole. He was conveyed by ambulance to the Hobart Private Hospital where he remained for some two weeks. On the evening of his admission, Mr Mulholland had another syncopal event while lying in the surgical ward. Nursing staff found him unresponsive but were able to find a pulse and he was spontaneously breathing. The medical officer from emergency was called and his impression was that Mr Mulholland was post ictal (as if he had suffered a stroke or an acute epileptic seizure). This is recorded in a letter dated 16 January 2007 from Dr Coombs, a cardiologist, who saw him several hours after the accident. Dr Coombs said that on examination, he found Mr Mulholland to be an extremely guarded historian who was reluctant to tell him the details of his previous syncopal episodes. According to Dr Coombs, Mr Mulholland told him that he had a past history of hypertension but he denied any other form of cardiovascular past history. Dr Coombs noted that his blood pressure was 150/75. Dr Combs also noted that at that time, Mr Mulholland’s monitor showed sinus rhythm with intermittent left bundle branch block. Dr Coombs said in his report that Mr Mulholland had never had an electrophysiology study. Although Dr Coombs thought it possible that a sustained ventricular tachycardia might explain Mr Mulholland’s recurrent syncope, given the infrequency of his syncopal episodes (based on the history given), he thought the highest yield diagnostically would come from the implantation of a loop recorder. This was done on 11 August 2006. He then arranged for Mr Mulholland to come and see him after approximately one month but Mr Mulholland failed to keep that appointment and he has not seen him since. No arrhythmia was found and the loop recorder was subsequently removed. The loop recorder required Mr Mulholland to press a marking trigger when he had an event which disturbed him. Apparently Mr Mulholland had no such event.
22. On 8 January 2007 Dr Colquhoun referred Mr Mulholland to Dr Luke Galligan a senior cardiologist in Tasmania, for another opinion. Dr Colquhoun requested an opinion both on aetiology and the best management of Mr Mulholland’s syncopal episodes. Dr Colquhoun said in his letter that he had formed an opinion that the cause of Mr Mulholland’s syncope was inappropriate treatment of blood pressure. He also said that Mr Mulholland suffered from a marked white coat effect when he came near doctors for the purpose of having his blood pressure recorded. He noted that Mr Mulholland’s blood pressure was normal when he is away from medical practitioners. He said that Mr Mulholland was on a low salt diet plan but that he went a bit overboard and became hypotensive and had a further syncope.
23. Dr Galligan provided a report on 15 March 2007. In that report Dr Galligan recounted major details in a summary form. However, there are many events in the history given by Mr Mulholland which are not recorded by Dr Galligan. For example, Dr Galligan recorded only two motor vehicle accidents as a result of syncopal episodes. It is clear that Mr Mulholland has had three motor vehicle accidents which all appear to have arisen as a consequence of him losing consciousness whilst driving his cars. Dr Galligan also recorded that Mr Mulholland has had electrophysiological studies with no inducible arrhythmias. This is contrary to the report from Dr Coombs who was of the impression that Mr Mulholland had never had an electrophysiological study. Dr Galligan reported that at the time of his accident in August 2006, Mr Mulholland was following a rigourous low salt diet but was on no anti-hypertensive medication. Dr Galligan also noted that in the course of monitoring Mr Mulholland while he was in hospital following the August 2006 accident, it was recorded he had a short run of ventricular tachycardia. He suggested that the significance of that was doubtful following a recent chest contusion. In the accident, Mr Mulholland fractured his sternum and that injury may have led to a compression injury of the heart with contusion or other compression damage to the myocardium.
24. Dr Galligan suggested that there was no escaping that each of Mr Mulholland’s syncopal episodes occurred when he had either been taking anti‑hypertensive medication or he was on a low salt diet. It was his view that blood pressure treatments were undoubtedly implicated in the episodes of syncope but he also suggested that Mr Mulholland had a pre-disposition for syncopal episodes along the lines of vasovagal syncope. In Dr Galligan’s opinion, that meant that even if Mr Mulholland was not on anti-hypertensive medication or a low salt diet, he would still be at higher than acceptable risk of further syncope in the future and he thought that it was clear that Mr Mulholland should not fly solo. He also mentioned that there should be some concerns about Mr Mulholland’s ability to drive a motor vehicle.
25. In a letter dated 17 April 2007 addressed to Mr Mulholland, Dr Galligan said that he had discussed his problem with Dr Habersberger whom Mr Mulholland had previously seen. He said that although blood pressure medications had undoubtedly been a factor in his episodes of collapse of the years, he was also certain that Mr Mulholland was prone to episodes of light headedness and collapse which could recur in the future. He also repeated that it was not a good idea for Mr Mulholland to fly solo.
26. Mr Mulholland was examined by Dr Emmett on 11 May 2007. His blood pressure was recorded at 155/95. In answer to the question whether Dr Emmett considered there were any areas of concern in Mr Mulholland’s assessment which required specialist referral or counselling, he answered yes. He also answered yes to the question whether he had any doubts that Mr Mulholland is fit to exercise the privileges of his licence.
27. On 12 June 2007, CASA wrote to Mr Mulholland informing him that it had decided to issue him with Class 1 and Class 2 medical certificates with conditions. Those conditions are as follows:
Class 1 ‘As or with co-pilot’, Advanced Instructional Duties only.
Not permitted to conduct charter or regular public transport operations.
Other conditions listed in decision notice dated 12 June 2007.
Class 2 ‘As or with co-pilot’
Other conditions listed in decision notice dated 12 June 2007.
The “other conditions” referred to above for the class 1 medical certificates are as follows:
1.Advanced Instructional Duties are any flying training and testing activities you are authorised to conduct, excluding:
(a)ab initio training, mainly training of any person who holds only a student pilot licence;
(b)conducting flight tests for persons seeking the issue of a private pilot licence;
(c)conducting conversion training;
(d)conducting flight tests for the issue of an aircraft endorsement;
(e)conducting instrument training;
(f)conducting NVFR training;
(g)conducting flight tests for the issue of an instrument rating or NVFR rating (although you may conduct flight tests for the renewal of an instrument rating, but only where the instrument rating has not expired).
2.Prior to any flight commencing, Mr Mulholland must inform any occupant of aircraft in which Mr Mulholland will be seated at a control seat, he may experience unexpected loss of consciousness;
3.The aircraft flown must be configured with side by side seating in the cockpit;
4.The aircraft being flown must have a full set of dual flying controls;
5.Persons occupying a control seat must wear a shoulder restraint harness at all times;
6.Mr Mulholland must make a written report to CASA of any episode of dizziness or loss of consciousness, within 24 hours of its occurrence.
The other conditions referred to above for the Class 2 medical certificates are as follows:
1.Prior to any flight commencing, Mr Mulholland must inform any occupant of an aircraft in which Mr Mulholland will be seated at a control seat, he may experience unexpected loss of consciousness;
2.The aircraft flown must be configured with side by side seating in the cockpit;
3.The aircraft being flown must have a full set of dual flying controls;
4.Persons occupying a control seat must wear a shoulder restraint harness at all times.
THE LEGISLATIVE SCHEME
28. The issue of medical certificates is covered under Part 67 of the Civil Aviation Safety Regulations 1998 (CASR). The holder of a commercial pilot licence or an airline transport pilot licence is required to hold a Class 1 medical certificate. The holder of a private pilot licence is required to hold a Class 2 medical certificate.
29. On receiving an application under regulation 67.175 of the CASR for the issue of a medical certificate, CASA must issue that certificate to an applicant only if:
(a)the applicant meets the requirements of regulation 67.180(2); or
(b)if regulation 67.180(3) applies ‑ CASA is satisfied that issuing the medical certificate to the applicant will not adversely affect the safety of air navigation.
Regulation 67.180(2) provides that the applicant must have undergone relevant medical examinations for the issue of a medical certificate; provided appropriate answers to questions asked by the examiner; and, in particular, either:
(i)… meets the relevant medical standard; or
(ii)if the applicant does not meet that medical standard – the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation.
30. The relevant medical standard for the issue of a Class 1 medical certificate is set out in the table under regulation 67.150 of the CASR. To satisfy the criteria under Table 67.150, an applicant must, amongst other things, have no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a) an abnormality;
(b) a disability or disease (active or latent);
(c) an injury;
(d) a sequela of an accident or surgical operation. (Item 1.1)
Also, under Item 1.7, the applicant must have no established medical history or clinical diagnosis of:
(a) a safety-relevant disease of the nervous system; or
(b) epilepsy; or
(c)a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur.
31. An applicant for a Class 2 medical certificate must meet the standards which are set out in Table 67.155 of the CASR. Items 2.1 and 2.7 are in precisely the same terms as Items 1.1 and 1.7 in Table 67.150 which apply to a Class 1 medical certificate.
32. Safety-relevant is defined at regulation 67.015 of the CASR which provides:
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.
33. Regulation 67.195 of the CASR permits CASA to:
…issue a medical certificate to a person subject to any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person.
34. Regulation 67.240 of the CASR provides that if CASA directs the holder of a medical certificate to submit to an examination under regulation 67.230, CASA may, in writing, suspend the medical certificate. If it does so, CASA must give the holder of the certificate written notice of the suspension and reasons for the suspension. Where a person, after suspension pending a further medical examination, undergoes that examination but fails to meet the medical standard required under the CASR, CASA must, by written notice given to the holder, cancel the certificate. Alternatively, if CASA is satisfied that the holding of the medical certificate will not adversely affect the safety of air navigation, it must issue to the holder a medical certificate that is subject to any conditions that are necessary in the interests of the safety of air navigation (regulation 67.255).
APPLICATION NO T 200600173
35. This application was made in respect of the decision made by CASA on 8 November 2006 to cancel Mr Mulholland’s Class 1 and Class 2 aviation medical certificates. A medical certificate issued by CASA to a person who has undergone any relevant examination required for the purpose of the issue of that certificate remains in force for the period set out in the certificate, being a period of not more than:
(a)in the case of a class 1 medical certificate – 1 year after the day when the certificate comes into force; and
(b) in the case of a class 2 medical certificate:
(i)if the person is less than 40 years old when the certificate is issued to him or her – 4 years after the day when the certificate comes into force; or
(ii)if the person is 40 years old or older when the certificate is issued to him or her – 2 years after the day when the certificate comes into force… (Regulation 67.205(3))
Mr Mulholland’s Class 1 and Class 2 medical certificates stated that they both expired on 17 May 2007. For that reason, CASA contended that the Tribunal should not concern itself with a review of the decision to cancel Mr Mulholland’s Class 1 and Class 2 medical certificates on 8 November 2006 as to do so would be futile.
36. Dr Carl Nilsson, who appeared on behalf of Mr Mulholland, insisted that this application proceed even though he accepted that there was no utility in now requiring CASA to reinstate those certificates. Mr Nilsson submitted that the Tribunal should make a finding that CASA erred by cancelling the certificates when it could have ended or continued the suspension which was imposed on those certificates in September 2006. Dr Nilsson submitted that once the certificates were cancelled, they no longer existed, therefore they could not simply be reinstated but rather new certificates would have had to be issued.
37. It seems to us that Dr Nilsson has misunderstood the role of the Tribunal. If, prior to 17 May 2007, the Tribunal had heard Mr Mulholland’s application and decided that CASA’s decision to cancel Mr Mulholland’s medical certificates was incorrect, that decision would have been set aside and in substitution for the decision set aside, the Tribunal would have decided that the medical certificates continued to be in effect until their stated expiry dates. No new medical certificates would have been issued. The situation would have been as if the cancellation had never taken place.
38. However, following the expiry of Mr Muholland’s Class 1 and Class 2 medical certificates on 17 May 2007, the Tribunal could not make a decision insisting that those medical certificates be reinstated. The Tribunal’s powers on review are set out in s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 25(1) provides that:
An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may conferred, by another enactment having effect under that enactment.
What constitutes a reviewable decision is set out in s 31 of the Civil Aviation Act 1988 (the Act).It includes a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under [the Act or the CASR]. Clearly, a decision to cancel medical certificates falls within s 31 of the Act.
39. The disposition of proceedings commenced before the Tribunal is controlled by ss 42A, 42B, 42C and 42D of the AAT Act. If the matter proceeds to a hearing, the Tribunal would then dispose of the matter in accordance with s 43. CASA seeks to have this application dismissed under s 42B(1)(a) of the AAT Act which relevantly provides:
Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application…
40. The application of s 42B(1)(a) has been tested on a number of occasions before the Tribunal. In Re Reddish and Civil Aviation Safety Authority [1999] AATA 721, Deputy President A.M. Blow, OAM, QC, when dealing an application under s 42B of the AAT Act, referred to Re Gowing and Civil Aviation Authority (1990) 11 AAR 411 and Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118 stating, at paragraph 33 that these cases:
… are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant…
41. It appears to us that if the Tribunal were now to make an order setting aside CASA’s decision to cancel Mr Mulholland’s medical certificates on 8 November 2006, such a decision could not be of any practical benefit to Mr Mulholland. The Tribunal does not have the power to issue medical certificates. Its power is limited by statute to the review of reviewable decisions. Also, subsequent events have overtaken the cancellation decision made on 8 November 2006. After further medical examinations Mr Mulholland re-applied for the issue of Class 1 and Class 2 medical certificates in June 2007. Although CASA was of the view that Mr Mulholland failed to meet the medical standards for a Class 1 or Class 2 medical certificate, relying on regulation 67.195 of the CASR, CASA agreed to issue Class 1 and Class 2 medical certificates subject to conditions. That decision is the subject of the second application by Mr Mulholland and which is now before the Tribunal.
42. We are therefore of the view that there would be no utility to Mr Mulholland if we were to proceed to determine whether the cancellation of Mr Mulholland’s Class 1 and Class 2 medical certificates on 8 November 2006 was, at that time, the correct decision. Therefore, the application in matter number T 200600173 should be dismissed pursuant to s 42B(1)(a) of the AAT Act.
MATTER NO T 2007/2778
43. As we have briefly said above, following the cancellation of Mr Mulholland’s Class 1 and Class 2 medical certificates on 8 November 2006, Mr Mulholland underwent a number of further medical examinations and he applied again for Class 1 and Class 2 medical certificates. That application was received by CASA on 5 June 2007. In a letter dated 12 June 2007, CASA said that although it had been informed by Mr Mulholland that he had not lost consciousness since the 2 August 2006 motor vehicle accident, the cause of his syncopes had yet to be positively determined. CASA relied on the report prepared by Dr Galligan dated 15 March 2007, where he said:
…In my opinion this means that even if he is not on anti-hypertensive medications or low salt diet he will still be at higher than acceptable risk of further syncope in the future and I think it is clear that he should not solo pilot a plane [sic].
44. CASA also said that Mr Mulholland had a high risk of losing consciousness while flying an aircraft. It considered that his medical condition was likely to reduce his ability to pilot an aircraft or that, by allowing him to fly an aircraft, he would likely endanger the safety of air navigation. Therefore, CASA was not required to issue Mr Mulholland with a medical certificate as he failed to meet the requirements set out in regulation 67.180(2)(e)(i) and (ii) of the CASR. Nevertheless, CASA determined that it could issue Mr Mulholland with Class 1 and Class 2 medical certificates subject to conditions which are necessary in the interests of the safety of air navigation in accordance with regulation 67.195.
45. Mr Mulholland contended that the conditions imposed on his Class 1 and Class 2 medical certificates are unnecessary and prevent him from earning a living. Dr Nilsson submitted that Mr Mulholland had agreed to abide by a set of self imposed conditions and that he would limit his total flying time to 120 hours in the first year, of which no more than 12 hours would be solo. Dr Nilsson also contended that in any event, Mr Mulholland met the criteria for medical standard one and medical standard two as set out in Tables 67.150 (Item 1.7) and 67.155 (Item 2.7) respectively. Dr Nilsson submitted that Mr Mulholland did not fail to meet the standards set out in those items because, although he may have a safety‑relevant condition, it is not unexplained and the risk of incapacitation is so low as to be not significant. Dr Nilsson did not address Item 1.1 in Table 67.150 or Item 2.1 in Table 67.155.
46. Mr Adam Anastasi, who appeared on behalf of CASA, submitted that the cause of Mr Mulholland’s past syncopes has not been positively determined. For that reason, Mr Mulholland failed to meet the standards required by Item 1.7 in Table 67.150 or Item 2.7 in Table 67.155. Mr Anastasi submitted that because Mr Mulholland has suffered from syncopes since at least 1996, they are likely to recur in the future. Furthermore, because his most recent syncopal episode on 2 August 2006 occurred at a time that Mr Mulholland was not taking any anti-hypertensive drugs, this points to the fact that his medication was not the cause, or not the only cause, of his past syncopal events. Furthermore, Mr Anastasi submitted that Mr Mulholland has a safety‑relevant condition which precludes him from meeting the standards in Item 1.1 of Table 67.150 or Item 2.1 of Table 67.155.
DOES MR MULHOLLAND HAVE A SAFETY-RELEVANT MEDICAL CONDITION
47. It was not seriously argued by Dr Nilsson and in fact in his submissions, he accepted that Mr Mulholland may have a safety-relevant medical condition. In our view, there can be no question that Mr Mulholland does have a medically significant condition which is safety-relevant. He has suffered from syncope since 1996 and this medical problem has caused Mr Mulholland to suffer sudden and brief losses of consciousness as well as feelings of light headedness and a sense of impending faint without loss of consciousness. In either case, it is plain that Mr Mulholland’s ability to safely exercise the privileges conferred by his pilot licenses in the event that he suffered from syncope while at the controls of an aeroplane would not only be seriously reduced, but most likely would be lost entirely. Although Dr Nilsson submitted that where loss of consciousness occurred, or if Mr Mulholland felt dizzy or light headed, it was only for a brief period of time, that does not alter our view that Mr Mulholland’s medical condition is safety-relevant. As Dr Ian Hoyle pointed out in his report of 13 October 1996, although Mr Mulholland only lost consciousness for about 30 seconds, he felt slightly confused for an hour or two and that his condition improved after eating some food. Therefore, Mr Mulholland’s problem is not confined to the momentary lapse of consciousness or feelings of dizziness or light headedness, but these events may be followed by significantly lengthy periods of mental confusion. There can be no question that a condition which manifests itself in this way must be safety-relevant as that term is defined in regulation 67.015 of the CASR. His condition is not only likely to reduce his ability to exercise the privileges of his licence, but it undoubtedly will do so should it occur when Mr Mulholland is at the controls of an aircraft.
48. Furthermore, the criteria set out under regulations 67.150 and 67.155 (Items 1.1 and 2.1) refer to the safety-relevant condition being of a kind that produces any degree of functional incapacity or a risk of incapacitation. It simply cannot be argued that Mr Mulholland satisfies the criteria set out in Items 1.1. and 2.1. He clearly does not. On this basis alone, Mr Mulholland does not meet the criteria for medical standard one or medical standard two.
THE CAUSE OF MR MULHOLLAND’S SYNCOPE
49. The thrust of Mr Mulholland’s argument for having the conditions imposed on his pilot licences either lifted or substantially reduced is that the cause of his syncope has now been positively determined. Therefore, according to Mr Mulholland, by following a therapeutic plan provided by his current treating general practitioner, Dr Colquhoun, he is unlikely to suffer from syncope in the future. In fact, Dr Nilsson submitted that the probability of such an event occurring again in the future is extremely low.
50. Dr Nilsson submitted that there was an overwhelming amount of evidence to show that Mr Mulholland’s past syncopal attacks have been due to a combination of medication (primarily to lower blood pressure) and external factors such as dehydration, salt depletion and hypoglycaemia. He also submitted that this has been accepted by at least 12 doctors including a number of well accredited specialists. Unfortunately, a closer examination of the reports provided by numerous practitioners prior to this application being made by Mr Mulholland does not support Dr Nilsson’s contention. In brief, the statements made are as follows:
(a)Dr Hoyle, in his report dated 13 October 1996, said the most probable diagnosis therefore is that of reactive hypoglycaemia given the history and the negative battery of tests that have been performed.
(b)Dr McTaggart, a cardiologist, in a report dated 17 October 1996, regarded the first episode as a vasovagal attack although he said it was not possible to totally ignore Mr Mulholland’s exercise induced left bundle branch block as indicating possible early conducting system disease.
(c)Dr Stan Siejka, on 30 October 1996, reported that Mr Mulholland’s first syncopal episode was consistent with a single vasovagal syncopal attack precipitated by partial hypoglycaemia and possible partial dehydration.
(d)In a report dated 12 June 1997, Dr Hoyle concluded that Mr Mulholland suffered another syncopal attack which followed a valsalva manoeuvre in the face of relative hypotension due to Beta‑block aid.
(e)On 19 August 1997, Dr McTaggart said he thought Mr Mulholland had a tendency to vasodepressor syncope, unexpected drop in blood pressure and pulse rate, resulting in syncope and suggested that he would treat the situation with a Beta‑blocker which he thought Mr Mulholland had taken intermittently in the past. Dr McTaggart said there was enough doubt about the situation to warrant a coronary angiography to definitely exclude underlying coronary disease and also a tilt table test and, if necessary, an electrophysiological study to exclude arrhythmia or vasodepressor syncope.
(f)Dr Emmett, Mr Mulholland’s DAME, said in a report dated 5 August 1997 that he was uncertain as to whether Mr Mulholland’s dizzy spells represented a cardiac event and he pondered the efficacy of further electrophysiological tests regarding the left bundle branch block.
(g)Dr Peter Illes, a consultant cardiologist, performed a coronary angiography on Mr Mulholland on 1 October 1997 which disclosed there was some evidence of atheroma but a non-obstructive coronary disease.
(h)In a report dated 12 August 1998, Dr Jitu Vohra performed a Tilt Table test which he said could not be considered diagnostic and he arranged for him to have an echocardiogram.
(i)In a report dated 14 July 1998, Dr Roderick Warren reported that it is likely that Mr Mulholland had no major abnormality but the exercise induced left bundle branch block raised a slight possibility of conduction disease contributing to his symptoms.
(j)Dr Illes reported on 4 March 1999 that the ECG he conducted showed a normal sinus rhythm and no evidence of the left bundle branch block which he believed may have been related to previous anti-hypertensive drugs Mr Mulholland was taking.
(k)On 19 August 1999 Dr Illes reported that the Sestamibi scan on Mr Mulholland was normal and he therefore was of the view that Mr Mulholland’s previous ECG was a false positive.
(l)On 8 February 2001 Dr Marcus Skinner, who examined Mr Mulholland after yet another syncopal attack, noted that Mr Mulholland gave a poor history of compliance with medication and that his syncopal episodes were brief but of concern because Mr Mulholland could not remember what actually happened. Mr Mulholland volunteered that he changed his medication as he monitored his own blood pressure and that he had seen his normal general practitioner for some episodes, however his DAME was not fully aware of some of the findings. A clinical examination failed to reveal any other significant findings and Dr Skinner suggested that Mr Mulholland see Dr Habersberger in Melbourne.
(m)Dr Michael Nicholson reported on 19 February 2001 that Mr Mulholland had poorly controlled hypertension, that his compliance with therapy was less than ideal, that he had had a very abnormal exercise test (albeit in the absence of major coronary disease), and that in the past he has had left bundle branch block while taking Beta‑blockers. Of all of the problems, Dr Nicholson suggested that the only problem that might be readily addressed was his poorly controlled hypertension and that having regard to the previously noted cardiovascular abnormalities, his judgement was that Mr Mulholland was at increased risk of major cardiac events in the foreseeable future.
(n)Dr Leigh Bowman reported on 6 February 2002 that Mr Mulholland was not on any medication, the physical examination was unremarkable and that the exact cause of his syncope remained obscure. Dr Bowman also said that it cannot be assumed that the cause of the syncope is only due to Beta‑blockers as he was on quite a low dose and had symptoms even on Monopril (an ACE inhibitor). Dr Bowman suggested a postural hypotension is the most likely cause but that other problems needed to be excluded.
(o)On 15 February 2002 Dr Bowman reported that he suspected that the most likely cause of Mr Mulholland’s syncopal episodes was postural hypotension and that he should stay off Beta-blockers to see how things go.
(p)On 17 July 2002, Dr Emmett reported that Mr Mulholland had suffered no further syncopal episodes after stopping Beta‑blockers which were most likely to be responsible for his hypertensive episodes, and that his hypertension was now controlled by adequate exercise, complete cessation of smoking and the near complete avoidance of alcohol.
(q)On 23 January 2003 Dr Emmett reported that the dizzy spells Mr Mulholland has had were now of some concern as the frequency had increased and that no cause has been found.
(r)On 24 January 2003 Dr Emmett wrote to Dr Habersberger describing Mr Mulholland’s problem as a frustrating medical case and that in the previous six months Mr Mulholland had further dizzy spells. Dr Emmett said that he suspected that there may be some intermittent heart block but that nothing abnormal had been found. The dizzy spells have continued to occur and his future in the aviation business depended on medical practitioners finding a correctable/demonstrable cause.
(s)On 10 February 2003 Dr Habersberger reported that there was no evidence to suggest there was any organic pathology responsible for Mr Mulholland’s dizzy episodes. Dr Habersberger said he believed that Mr Mulholland’s dizzy episodes were related to postural hypotension, possibly aggravated by the fact that he was on Beta‑blockers, and he recommended that he use an ACE inhibitor or an angiotensin receptor blocking drug.
(t)On 22 January 2005, following a motor vehicle accident most likely caused by Mr Mulholland suffering another syncope, he was examined by Dr John Waterston who said he did not think there was a primary neurological cause for Mr Mulholland’s blackouts which appeared to be related to cardiovascular collapse. He suggested that a loop be inserted to try and catch an arrhythmia in the event that Mr Mulholland suffered a further syncope.
(u)On 4 February 2005 Dr Habersberger said that he believed that it is most likely that Mr Mulholland was having a cardiac rhythm disturbance.
(v)In a report dated 27 May 2005, Dr Habersberger said that there had been no clarification as to the cause of the syncope.
(w)On 6 January 2003 Dr Hoyle referred to Mr Mulholland’s history of syncope and said that the causes of the episodes of syncope have been very elusive. He also wondered whether Mr Mulholland’s symptoms might be due to narcolepsy and he was suspicious that Mr Mulholland was suffering from recurrent cardiac arrhythmia which has not been picked up on monitoring or holter test.
(x)Dr Hugh Mestitz said in a report dated 9 January 2003 that in his opinion Mr Mulholland did not have the narcolepsy/cataplexy syndrome.
(y)On 20 September 2006 Dr Emmett said that he told Mr Mulholland that he did not think that doctors could always prove what is wrong with him as this was not always possible. If a cause is not found it does not make it safer until a cause is found and proven to be the cause and proven to be successfully treated he could not expect to fly.
(z)On 1 December 2005 Dr Robert Parkes said that by exclusion, the most likely diagnosis is a simple faint related to a combination of dehydration and the effects of his medications. He said there was no evidence for cardiac or neurologic cause and there was no evidence for other conditions such as basilar migraine or an effect related to the use of other illicit drugs.
(aa)Dr Galligan said in a report dated 15 March 2007 that blood pressure is undoubtedly implicated in Mr Mulholland’s episodes of syncope but at the same time he was of the view that Mr Mulholland clearly had a predisposition for syncopal episodes along the lines of vasovagal syncope. Therefore, in Dr Galligan’s opinion, even if Mr Mulholland were not on anti-hypertensive medications or a low salt diet he would still be at a higher than acceptable risk of further syncope in the future.
(bb)On 30 August 2006 Dr Colquhoun said that he believed Mr Mulholland’s previous accidents may have been contributed to by the treatment with blood pressure medication which lowered his blood pressure too far. Also, when examining the link between the accidents Mr Mulholland had, he said until a definite diagnosis of Mr Mulholland’s loss of consciousness (is established) there was no obvious link between the accidents.
(cc)On 16 January 2007 Dr Coombes, cardiologist, said that Mr Mulholland’s monitor at the time showed sinus rhythm with intermittent left bundle branch block (this is after the third motor vehicle accident). Dr Coombes said he thought it possible that a sustained VT (Ventricular Tachycardia) might explain his recurrent syncope but given the frequency of the episodes, he thought the highest yield diagnostically would come from the implantation of a loop recorder.
On 24 May 2007 Dr Emmett said that his opinion remained the same as the comments in his letter of 26 December 2005 and that Mr Mulholland had been repeatedly investigated with no positive findings for any other cause by multiple specialists over the past 10 years. He also said that time of observation may point towards an iatrogenic cause rather than idiopathic or other proven diagnosed cause.
In an affidavit sworn 23 April 2007, Dr Colquhoun said that in his opinion, having regard to all the intervening tests performed on Mr Mulholland and the apparent lack of structural problems, a satisfactory diagnosis of the syncope episodes has been made. He also said that if Mr Mulholland continued to follow his therapeutic plan, his blood pressure continued to range between approximately 130/80 to 150/80 and Mr Mulholland remained well hydrated, the risk of further syncope episodes was low.
51. In our opinion, the cause of Mr Mulholland’s syncopal attacks has not been established with any degree of certainty despite Dr Colquhoun’s opinion. The extensive list of reports above indicates a range of possible factors, none of them necessarily being mutually exclusive. The various possibilities offered include reactive hypoglycaemia; vasovagal attack; dehydration; vasodepressor syncope; use of anti-hypertensive drugs; left bundle branch block (ventricular tachycardia); poor compliance with medication; postural hypotension; intermittent heart block; cardiovascular collapse; cardiac disturbance; predisposition for syncopal episodes; and low salt diet.
52. Despite the various experts who have opined on the possible cause of Mr Mulholland’s syncopal episodes without determining a cause, Dr Colquhoun was of the opinion that Mr Mulholland suffers from a noticeable white coat effect and for that reason, blood pressure measurements taken by various doctors have been elevated. He was of the view that any hypertension with which Mr Mulholland has been diagnosed has been exaggerated. Mr Mulholland provided his daily blood pressure readings for July, September, October and November 2006. These are blood pressure readings that he had taken at home, generally around about 8.00 a.m. They show blood pressure readings which are, in the main, within the normal range. The fact that Mr Mulholland records his own blood pressure is not new. In his report dated 8 February 2001, Dr Skinner said that Mr Mulholland told him that he alters his medication (anti-hypertensive) as he monitors his own blood pressure. On the other hand, Mr Mulholland has also frequently had his blood pressure measured by various doctors where the readings were at a normal level. It is not clear whether Mr Mulholland was taking anti-hypertensive drugs when those measurements were taken and, in our view, that remains a concern.
53. It is clear from the various histories he has given to all of the medical practitioners who have examined him and reported on his condition that Mr Mulholland has been selective in the information he has provided to the examiner. Furthermore, as the Tribunal found in its decision of 24 May 2006, Mr Mulholland tends to self‑medicate despite what he has said to various medical practitioners and to the Tribunal. A further example of that is where Mr Mulholland told the Tribunal on the last occasion that he was not taking any anti‑hypertensive drugs because he was attempting to control his hypertension with a lifestyle change. That was in April 2006. However, at this hearing Mr Mulholland said that he continued to take anti-hypertensive medication at least until the end of June 2006. It is clear that we cannot rely on Mr Mulholland’s evidence that he is not using anti-hypertensive drugs even at this point in time.
54. Although Mr Mulholland said in evidence that he has not taken any anti-hypertensive drugs since the end of June 2006, his most recent reported syncopal episode, which resulted in his third serious motor vehicle accident, occurred on 2 August 2006 when he said he was not taking anti-hypertensive drugs. Dr Sham Tak Sum, a medical officer in CASA’s Office of Aviation Medicine, said that the effects of anti-hypertensive drugs would cease within about three days of ceasing to take them. If we are to believe Mr Mulholland about his use of anti-hypertensive drugs, then his third motor vehicle accident occurred some four weeks after he had ceased taking anti-hypertensive drugs. If that is correct, then the use of anti-hypertensive medication would not appear to have been a factor in Mr Mulholland’s syncope which resulted in the motor vehicle accident on 2 August 2006.
55. By way of alternative explanation, Dr Colquhoun suggested that his 2 August 2006 syncope was due to Mr Mulholland’s low sodium diet and to dehydration. However, there are also problems with these explanations. The first is that there was no evidence before us that Mr Mulholland was dehydrated or suffering from low sodium levels on 2 August 2006. Mr Mulholland did say in evidence that he had attempted to eliminate, as much as possible, water from his diet. He said that he had formed the view that there was a certain component of sodium in tap water and he was limiting that in order to get his blood pressure down to the absolute minimum. However, Mr Mulholland agreed that there was nothing in the therapeutic plan provided by Dr Colquhoun which suggested eliminating water from his diet. Perhaps more significant is Dr Sham’s evidence regarding saline depletion. He said that a person suffering from this condition would have symptoms and would feel sick, uncomfortable and quite miserable. However, Mr Mulholland’s evidence was that he felt quite normal and had no indication whatsoever of the impending event on 2 August 2006 or at any other time. Dr Sham also said that a person in that condition would have aches and pains and muscle weakness. None of this was described by Mr Mulholland. Furthermore, Dr Sham said the symptoms would be apparent for a substantial period of time prior to having a syncopal episode because the body was very sensitive to sodium and saline depletion.
56. Dr Sham also pointed out in his evidence that a person driving a motor vehicle would be in a situation of elevated arousal because greater vigilance is required. In those circumstances, Dr Sham was of the opinion that a person would be able to maintain blood pressure sufficient to retain consciousness. He said that the fact that Mr Mulholland had experienced three motor vehicle accidents while driving because of a loss of consciousness completely destroyed any theory about a lowering blood pressure causing the loss of consciousness. He said that all of the discussions regarding the white coat syndrome were a red herring. We should also mention that when Mr Mulholland was admitted to hospital following his motor vehicle accident on 2 August 2006, a blood sample was taken indicating that his sodium level was normal. Dr Colquhoun agreed that Mr Mulholland’s electrolytes where normal on that test, but explained that the point about a low sodium diet is that sodium is reduced and this reduces the stimulus on the kidneys to produce hormones that cause vassal constriction. Under those circumstances, a person could nevertheless expect to have normal electrolytes on a low sodium diet. It was put to Dr Colquhoun in cross‑examination that Mr Mulholland’s urea recording was also in the normal range and that if he were dehydrated, one would expect the urea recording higher than that. Dr Colquhoun agreed that was a reasonable assumption but, for a person on a low protein diet, that might not hold true. He nevertheless agreed that there was nothing in the tests conducted on Mr Mulholland when he was hospitalised to suggest that he was seriously dehydrated.
57. There is also the problem of Mr Mulholland losing consciousness again when he was in hospital on 2 August 2006. Dr Coombes reported that Mr Mulholland had another syncopal event whilst lying in the surgical ward. The nursing staff found him unresponsive but were able to find a pulse and he was spontaneously breathing. The medical officer who attended him from emergency said that his impression was that Mr Mulholland was post ictal. This episode, according to Dr Sham would indicate that this was not a vasovagal syncope.
58. In our view, the evidence overwhelmingly points to the fact that the precise cause of Mr Mulholland’s tendency to suffer syncope has not been established at all, let alone with any certainty. Many possibilities have been raised however, except for Mr Mulholland's general practitioner, Dr Colquhoun, no medical practitioner, most of whom are eminently qualified in the field, claims to have determined the cause of Mr Mulholland’s medical problem. Even Mr Mulholland’s DAME, Dr Emmett accepted that the cause of Mr Mulholland’s syncopal episodes remains unknown. He said (at transcript p 56):
… I think I’ve said that you’re always going to have a set of causes called idiopathic, when we don’t know what the medical causes are and that’s – even in 100 years’ time, it’s still going to be – there’s still going to be some idiopathic causes. We don’t know what the cause in Mr Mulholland is, but the suspicion is it may have been due to medication in the past.
…
59. When it was pointed out to Dr Emmett that Mr Mulholland said he had stopped taking medication prior to the accident in August 2006, Dr Emmett agreed that changed his view and that it made it at least unlikely that it was medication induced.
60. The evidence does establish that Mr Mulholland has a medical history or clinical diagnosis of a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur. For that reason also, we are satisfied that Mr Mulholland does not meet the requirements for a Class 1 or Class 2 medical certificate because he does not satisfy the criteria set out in Item 1.7 and Item 2.7 of Tables 67.150 and 67.155 of the CASR respectively.
RISK OF MR MULHOLLAND SUFFERING A SYNCOPE IN FLIGHT
61. Dr Nilsson strongly disagreed with CASA’s statement in its letter of cancellation of Mr Mulholland’s Class 1 and Class 2 medical certificates dated 12 June 2007 where it said:
You have a high risk of losing consciousness while flying an aircraft
62. Dr Nilsson was highly critical of CASA’s statistical analysis of the risk Mr Mulholland poses to the safety of air navigation. In particular, Dr Nilsson pointed out a number of difficulties in interpreting the so‑called one per cent rule which has been published by CASA and in particular by Dr David Fitzgerald in a recent addition of Flight Safety. Dr Nilsson also submitted that it was invalid to apply the one per cent rule to older pilots nearing the end of their flying careers.
63. Dr Nilsson's statistical evidence was presented in response to CASA's statement as outlined in paragraph 59 above contending that Mr Mulholland had a high risk of losing consciousness while flying an aircraft. The relevant legislative provisions however do not refer to the level of risk. The table under Regulation 67.150 at Item 1.1 simply refers to a safety relevant condition that produces a risk of incapacitation. The degree or level of risk is not a criterion prescribed by the legislation. Caution was expressed by the Tribunal when considering the value of statistics with respect to the risk of safety and medical cases. In Re Window and Civil Aviation Authority 1999 AATA 525 Deputy President Forgie said at paragraph 60:
"Having regard to the need to protect public safety while having regard to a person's entitlement to pursue his or her ambitions, we consider that the word "likely" means a "substantial or real and not a remote chance". That is not a matter which can be assessed on statistical likelihood and certainly does not mean "more likely than not", "odds on" or "a more than 50% chance of a thing happening". To adopt those latter three meanings would, in our view, be to place too little weight on the protection of public safety and too much on an individual's entitlements.
64. In Hall and Civil Aviation Safety Authority [2004] AATA 21, Deputy President Handley said at paragraph 45:
"As the Tribunal stated in Re Windows (supra), the assessment of what is "likely" cannot be based on statistical likelihood. In this context, it is a matter of weighing up the requirements of air safety with the applicant's interest in the safe exercise of the privileges and performance of the duties associated with holding a private pilot's licence. The Tribunal's view is that in June 2003, given the medical information available to CASA, a decision to impose a condition on Mr Hall's Class 2 Medical Certificate was reasonable given the risks associated with his heart condition when considered in the context of air safety. In terms of the medical standard in Schedule 1, Part 1 of the old regulations, and whether his heart condition was likely to interfere with the safe exercise of his privileges or performance of his duties associated with his holding a private pilot's licence, there was a real risk, albeit a small one. When issues of air safety are under consideration, a small risk may be sufficient to trigger the need to take appropriate action to address the risk. This was the case here"
65. Whether Mr Mulholland has a high risk or a low risk of losing consciousness while flying an aircraft is simply irrelevant. The fact is that he has a risk of incapacitation which is significantly different to the remainder of the aviator population who do not suffer from syncope or any other safety-relevant medical condition. In our view the risk of incapacitation is real and not an imaginable or fanciful risk nor is it a remote risk.,
66. Whatever the risk may be of Mr Mulholland suffering a syncopal attack whilst flying, it is not to the point that it can be shown statistically that the risk is small. Dr Nilsson contended that the evidence does not support a finding that the frequency of syncope episodes is increasing. This is not a relevant test under the legislation. What is important is whether Mr Mulholland meets the requirements for the issue of a Class 1 or Class 2 medical certificate. If he does not, the only question remaining is whether CASA should issue to Mr Mulholland medical certificates with conditions in accordance with regulation 67.195 of the CASR. Any conditions imposed on a medical certificate must be necessary in the interests of the safety of air navigation, having regard to the medical condition of the person.
67. It is also important to understand that CASA must bear in mind the safety of persons other than Mr Mulholland, on the ground and in the air, and also their property. CASA’s principal concern must be the safety of air operations generally and this is clearly set out in s 9A of the Act 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.
68. In considering what conditions need to be imposed on Mr Mulholland’s medical certificates, CASA needs to consider the impact on flight safety of Mr Mulholland having a syncopal attack airborne There can be no question that if Mr Mulholland suffered a syncopal attack airborne, it can be said with absolute certainty that this would reduce his ability to exercise the privilege of his licence. Although the syncopal episodes are of relatively short duration, the medical evidence suggests that if loss of consciousness does occur, it can take one or two hours before he has fully recovered. Of note is a comment by Dr Waterston in his report of 22 January 2005, where he stated:
"Of note is a comment by Dr Waterston in his report of 22 January 2005, where he stated "Other blackouts appear to have been brief and have never had any warning ... I managed to speak to his ex-wife Margaret who has witnessed two of these episodes. She said that he loses consciousness for about a minute and he looks as though he is dead as his colour is very grey during the episodes. She did not witness any convulsive activity".
69. Taking account of the above evidence, it is clear that Mr Mulholland cannot be allowed to fly without a qualified co-pilot in an aircraft equipped with dual controls. Furthermore, Mr Mulholland must be properly restrained so that in the event that he does lose consciousness, he will not interfere with the flight controls. Necessarily, the conditions will need to be extensive to ensure that if Mr Mulholland suffers a syncopal attack whilst airborne, an accident will not result.
70. We are therefore of the view that it would not be safe to allow Mr Mulholland to conduct basic flying training or any testing up to and including private pilot licence. He should not be involved in conversion training or flight tests for the issue of aircraft endorsements. Restrictions should also be placed on Mr Mulholland conducting instrument rating training, night visual flight rules training or tests for the issue of such ratings.
CONCLUSION
71. Mr Mulholland’s medical condition is such that it causes him at times to feel light headed or dizzy, and at other times, to lose consciousness for brief periods of time. If such an event were to occur while Mr Mulholland was flying an aeroplane, he would be at serious risk of having an accident. He suffers from a safety-relevant medical condition which, if experienced while flying, will certainly reduce his ability to exercise the privileges of a pilot licence. For that reason alone, he does not meet the medical standard required for the issue of a Class 1 or Class 2 medical certificate.
72. Furthermore, the weight of evidence is that the cause of Mr Mulholland’s syncopal attacks has not been established with any degree of certainty. Although he has been examined by numerous medical practitioners, all of whom have offered a variety of opinions about the possible causes of his syncopes, except for Dr Colquhoun, none have been prepared to positively identify the cause. In fact, some of the suggested causes have been discounted by subsequent events. For example, when Mr Mulholland first began to suffer syncopal attacks, it was suggested that anti-hypertensive medication was causing a significant drop in his blood pressure which in turn led to the syncope. However, in Mr Mulholland’s latest recorded serious syncopal episode, his evidence was that he had not been using anti-hypertensive drugs for a period of some four weeks. Given that the medical evidence was that the effects of anti-hypertensive drugs on blood pressure ceased within about three days of last taking such medication, it is unlikely that anti-hypertensive medication by itself is the cause of Mr Mulholland’s problem.
73. Some medical practitioners have also suggested that Mr Mulholland suffers from postural hypotension. However, Mr Mulholland has suffered syncopal episodes when simply sitting for periods of time in his motor vehicle and even, on one occasion, whilst lying prone on a hospital bed. Although Mr Mulholland has tested positive on occasions for a left bundle branch block in the course of stress tests, these have subsequently been discounted as false positives. Added to this mix of complications is the fact that Mr Mulholland, of his own admission, has been a guarded historian. No medical practitioner can be confident that Mr Mulholland has recounted all of the syncopal episodes that he has experienced since 1996. In fact, the evidence suggests that at times he has not reported suffering from dizziness or light headedness. More recently, Dr Colquhoun has attributed Mr Mulholland’s latest syncopal attack to dehydration and a low salt diet. However, once again we are left with only Mr Mulholland’s statement about low salt and water intake. There was no objective evidence whatsoever that Mr Mulholland in fact suffered dehydration or from a low salt diet. Dr Colquhoun suggested that the reason why Mr Mulholland suffered a further syncope in hospital following his car accident was because he was most likely dehydrated. There was no co-operative or medical evidence to support Dr Colquhoun's suggestion. The Tribunal noted that Dr Colquhoun did not have his medical notes with him when giving his evidence to the Tribunal.
74. The Tribunal, in the course of Mr Mulholland’s earlier application, was told that Mr Mulholland ceased using anti-hypertensive drugs in April of 2006. However, his evidence now before the Tribunal was that he did not stop using anti-hypertensive drugs until the end of June 2006. Mr Mulholland’s lack of candour regarding his use of anti-hypertensive drugs and the number of syncopal episodes he has in fact suffered have not assisted any of his medical practitioners in arriving at a clear cause for his medical problem. It is of some interest to note that Dr Galligan, who examined Mr Mulholland following his last motor vehicle accident, reported that even if he was not on anti-hypertensive medication or a low salt diet, he would nevertheless be at a higher than acceptable risk of further syncope in the future. From that report alone, it is not unreasonable to conclude that Mr Mulholland has an established medical history of a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur. Mr Mulholland clearly does not meet the medical standard for the issue of Class 1 or Class 2 medical certificate.
75. Dr Nilsson's statistical assessment of the probability of Mr Mulholland suffering an incident whilst flying was based on his understanding of the history of the syncope episodes. However if the history is incorrect, which we believe it is, then Dr Nilsson's assessment must accordingly be flawed. For example no reference was made by Dr Nilsson to Dr Waterston's report of 22 January 2005 who stated that Mr Mulholland "has suffered from infrequent blackouts during the last ten years and estimates that he might have had an average of one or more every year". Dr Waterston went on to state "Several episodes have occurred around his house and one occurred the morning after heavy alcohol intake while he was sitting at the breakfast table". On 6 January 2003 Dr Hoyle had reported that in the last five years Mr Mulholland had had "five episodes of spontaneous loss of consciousness". It was Mr Mulholland's evidence that he had only suffered three episodes by January 2003. On 9 January 2003 Dr Mestitz reported:
"For 5-7 years he has had episodes of syncope with the frequency of approximately one each 6 months (his last episode was several weeks ago). These episodes appear to occur unpredictably, without warning and are sometimes associated with assuming the upright posture (but not always) there seems to be associated brief loss of consciousness and it is not uncommon for him to end up with a laceration or bruise. There appear to have been very many cardio logical and some neurological investigations which have proven to be non-diagnostic".
76. Although Dr Nilsson made extensive submissions regarding the likelihood of Mr Mulholland suffering a syncopal attack while flying an aircraft, and he reported that if Mr Mulholland restricted his flying hours, his risk of having a syncopal attack airborne was small, that clearly is not the test under the CASR. The fact is that Mr Mulholland has a condition which may recur and CASA, quite correctly in our opinion, cannot be satisfied that Mr Mulholland’s medical condition does not pose a risk to the safety of air navigation. Therefore, if Mr Mulholland were to be issued with medical certificates, it must be with conditions which will ensure that in the event that he loses consciousness or has a dizzy spell while airborne, an accident will not result. CASA has in fact imposed extensive conditions on Mr Mulholland’s Class 1 and Class 2 medical certificates. In our opinion, those conditions are necessary in the interest of the safety of air navigation. Considerations of fairness of the conditions and Mr Mulholland's wish to preserve his income earning capacity are not relevant criteria under the legislation.
77. The relevant legislative criteria are as follows:
1. Does Mr Mulholland have a medical condition?
2. If so, does it produce incapacity?
3. If so can appropriate conditions control the risk to air safety?
For the above reasons we find that Mr Mulholland does have a relevant medical condition for which the cause has not been satisfactorily explained, that the condition results in a functional incapacity and a risk of incapacitation but that the conditions imposed by CASA on Mr Mulholland's current medical certificates control the risk to air safety.
78. We are therefore of the view that the decision of CASA made on 12 June 2007 to issue Mr Mulholland with a Class 1 and Class 2 medical certificate with the conditions we have outlined above was the correct decision.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) and Mr Egon Fice (Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 23 & 24 August 2007
Date of Decision 14 November 2007
Advocate for the Applicant Dr Carl Nilsson
Solicitor for the Respondent Mr Adam Anastasi, CASA
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