Robey and Civil Aviation Safety Authority
[2021] AATA 854
•12 April 2021
Robey and Civil Aviation Safety Authority [2021] AATA 854 (12 April 2021)
Division:GENERAL DIVISION
File Number(s): 2019/2031
Re:Christopher Robey
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Emeritus Professor P A Fairall, Senior MemberDate:12 April 2021
Place:Sydney
The decision under review is affirmed.
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Deputy President B W Rayment OAM QC
CATCHWORDS
CIVIL AVIATION – application for conditional Class 2 medical certificate – where applicant has history of seizures – where applicant had a seizure during flight – where applicant seizure free for 7 years and off medication for 13 months – whether there is a likelihood that application would become incapacitated during flight – whether any appropriate conditions would be sufficient to mitigate risk – where no appropriate conditions would be sufficient – decision under review affirmed
LEGISLATION
Civil Aviation Safety Regulations 1998 (Cth) regs 11.056, 67.150.1.7, 67.155.2.7
CASES
Collins and Civil Aviation Safety Authority [2017] AATA 2564
Rent to Own (Aust) Pty Ltd and Australian Securities and Investments Commission [2011] AATA 689; 127 ALD 141
SECONDARY MATERIALS
Herm J Lamberink et al, ‘Individualised prediction model of seizure recurrence and long-term outcomes after withdrawal of antiepileptic drugs in seizure-free patients: a systematic review and individual participant data meta-analysis’ (2017) 16 The Lancet Neurology 523.
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
Emeritus Professor P A Fairall, Senior Member12 April 2021
We heard these proceedings in January 2021. Mr Robey was long licensed as a pilot. Mr Robey has a passion for flying. Not only is he very experienced but both his parents were flying instructors.
He had a private pilot’s licence from July 1973 and a commercial pilot licence from November 1976. From 1980 until 1982 he flew cargo commercially, contracted to TNT. From 1982 until 1989, he was a pilot for Ansett Airlines. From 1990 until 2009, he was a flying instructor, rated Grade 3 in 1990, Grade 2 in 1992 and Grade 1 in 1997. From 1995 until 2009, he was an aerial survey pilot, contracted to the NSW Rural Fire Service from 2004.
He was instrument rated continuously from January 1980 until August 2009, and from May 1991 until 2009, he held an Air Transport Pilot Licence.
Until August 2009, he had accrued a total of 12,018 flying hours. He had endorsements to act as pilot in command of eleven different kinds of aircraft.
In August 2009, he was aged 53 years. He is now 65 years of age.
On 31 August 2009, he was the sole pilot of a Beech Aircraft Corporation B200T and suffered a seizure. He was unconscious for some 20 minutes. In those 20 minutes, he gradually regained consciousness and successfully completed an approach and landing at Bankstown Airport.
Within several days, Mr Robey’s Class 1 and Class 2 medical certificates were suspended by the respondent (CASA) pending an examination by a Designated Aviation medical Examiner and a report being provided to CASA that included a clinical assessment of his post-incident physical and mental condition and comments on any discharge summary and/or hospital records stemming from the incident of 31 August 2009.
In January 2010, CASA informed Mr Robey that he did not meet the requirements for a Class 1 or Class 2 medical certificate and invited submissions of further information by him.
In June 2010, a CASA Medical Officer wrote to Mr Robey informing him that CASA had completed an assessment of his application for a medical certificate. CASA decided to refuse to issue him a medical certificate because he continued to fail to meet the medical standards set out in the Civil Aviation Safety Regulations 1998 (CASR) regs 67.150.1.7 and 67.155.2.7, on the grounds that he had ‘a history of seizure disorder and a cerebral lesion’, that he was ‘at risk of further seizures,’ and that ‘such an occurrence confers a significant risk to flight safety.’
In August 2018, Mr Robey applied to CASA for the issue of a conditional Class 2 medical certificate which would allow him again to act as pilot in command of an aircraft subject to the condition that the second control seat be occupied by a licensed pilot endorsed to fly the aircraft. CASA rejected the application in March 2019 and Mr Robey applied for review in this Tribunal in April 2019.
Regulation 67.015 of the CASR provides as follows:
67.015 Meaning of safety-relevant
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.
By reg 67.155 of the CASR, a person who satisfies the criteria in Table 67.155 meets medical standard 2. For present purposes, it is sufficient to refer to two parts of Table 67.155:
Table 67.155 criteria for medical standard 2
Item Criterion Abnormalities, disabilities and functional capacity 2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of function incapacity or a risk of incapacitation:
(a) an abnormality;
(b) a disability or disease (active or latent);
(c) an injury;
(d) a sequela of an accident or a surgical operation
2.2 Has no physical conditions or limitations that are safety relevant …
The particular conditions proposed by Mr Robey are expressed as follows:
[Aircraft] Requirements:
1.The aircraft must be configured with side-by-side seating in the cockpit.
2.The aircraft must have a full set of dual flying controls.
Requirements of the Pilot with Conditional Medical Certificate:
3.To wear a shoulder harness at all times when occupying a control seat.
4.To ensure that the second pilot reads the requirements stipulated in these conditions.
Requirements of the Other Pilot:
5.To occupy a control seat at all times.
6.To be endorsed and current on the aircraft type being flown.
7.To be appropriately rated for the inflight conditions.
8.To have a medical certificate not restricted to multi crew flight operations.
9.To be aware of the type of incapacity the pilot may suffer in flight.
10.To be prepared to take over the aircraft controls during critical phases of flight.
11.To be competent and capable of conducting the flight safely.
A further condition was proposed by Mr Robey after we reserved our decision, which we mention below.
Mr Robey tendered a report authored by Sydney University Clinical Associate Professor Nikpour dated 13 February 2019. He is also head of the Department of Neurology at the Royal Prince Alfred Hospital. The report stated that Mr Robey at the time had been seizure free for 7 years and had been off all medications for 13 months, and that he had cleared him for an unrestricted driver licence. That licence was a private driver licence, not a commercial one. The report did not discuss issues relevant particularly to the issue of a conditional Class 2 medical certificate.
CASA called Professor Ernest Somerville, who holds a conjoint chair in neurology at the University of NSW, and who has practised as a consultant neurologist at Prince of Wales Hospital since 2002 amongst other hospital appointments. He is also the chairman of the Australian and New Zealand Association of Neurologists.
Professor Somerville examined Mr Robey on 23 August 2019 at the request of CASA. The history he took on that occasion and on a previous consultation in 2015 recorded that his first seizure occurred in 2009 during sleep at about 2AM and that the second (awake) seizure occurred in August 2009 during flight. Approximately four more seizures occurred during sleep after his second seizure. The last, in 2012, was when he was away from home and did not have his medication with him. That seizure occurred about 36 hours after the last dose of antiepileptic medication.
He recorded that on the evening before the incident of August 2009, Mr Robey had slept poorly, a fact that Mr Robey referred to in evidence before us. He had a headache. He had requested clearance for descent to Bankstown Airport and became unconscious. The automatic pilot was engaged, and he recovered sufficiently about 20 minutes later to land the aircraft safely.
Professor Somerville referred in his report to the fact that the International League Against Epilepsy, which he described as the peak professional body of epilepsy specialists, had recently suggested that epilepsy ‘is no longer present when a person has experienced no seizures for 10 years, provided they have taken no antiepileptic medication for the last 5 of those years.’ Applying that criteria to Mr Robey, he remains epileptic at the present time. Not only has he not yet reached ten years since his last seizure, but he ceased taking antiepileptic medicine less than five years ago.
Dr Elizabeth Ryan, a CASA Senior Aviation Medical Officer, whose evidence is referred to in detail below, suggested that under current CASA policy, a somewhat more stringent test than that proposed by the International League Against Epilepsy might apply. Dr Ryan suggested that under CASA’s policy, Mr Robey would need to have been off his antiepileptic medication for 10 years, as well as seizure free for the same period. She said that the current CASA policy is thought to be justified on the ground that during a period when antiepileptic medication is being taken, it may be that seizures would have occurred so that ten years after the last dose of medication provides a more reliable guide. We do not need to decide that matter of difference in these proceedings, which might well require some further evidence if it arises. In particular, any statistics or other information known to the International League Against Epilepsy may be relevant in such a case.
We say we do not need to decide that matter because, unfortunately for Mr Robey, he presently fails both tests.
Professor Somerville diagnosed Mr Robey as suffering from epilepsy. While he had a history of seizures, the precise nature of that pathology was described as unclear. He commented that the fact that there was initial swelling in his brain which was later followed by shrinkage suggests an inflammatory process, such as autoimmune encephalitis. He also remarked that sleep deprivation may provoke seizures and that this may have been a factor in some of Mr Robey’s seizures.
Professor Sommerville said that the MRI scans show pathology in the temporal lobe that is permanent, and while it does not guarantee that there will be further seizures, it does provide a potential cause of further seizures.
In oral evidence before us Professor Somerville was asked about the nature of the seizures which Mr Robey had. His answer was as follows:
The description of the seizures – and I don’t think I – the way to really determine the nature of a seizure is to interview a witness. I haven’t done that, but there are a number of features that suggest that the seizures are what’s called tonic-clonic seizures or grand mal seizures; that is, convulsions with stiffness and jerking of both sides of the body. The fact that there is an abnormality on the brain screen, and the EEG also shows abnormalities in one part of the brain, indicates that those convulsions could be preceded by a non-convulsive seizure where he would just become blank and unresponsive, or confused. That may precede it. That may be the only seizure type in some people, and it may occur without preceding, too, a tonic-clonic seizure; but I think there are a number of features that indicate that Mr Robey has had tonic-clonic seizures, and really nothing that I saw that would suggest that he’s had seizures that have not gone into the tonic-clonic phase of the seizure.
Asked to indicate the basis on which he formed the view that grand mal seizures were involved, he considered the report of Mrs Robey as to his sleep seizures and the report of the August 2009 incident. He said:
The description from Mr Robey’s wife that he was jerking during the seizures that occurred during the night; that his muscles were sore afterwards, which commonly follows tonic-clonic seizures and doesn’t follow other seizure types; the report from the [Australian Transport Safety Bureau], I just had another look at while we were waiting, and what it says is that the other person – when he had the seizure while flying – the other person in the aircraft thought that he was having a seizure. Now people who are not medically trained, generally, if somebody just goes blank and unresponsive, will not necessarily consider that to be a seizure. Whereas if people are convulsing, they will. And it also – that [Australian Transport Safety Bureau] report also says that he then slumped forward, unconscious. That would not happen with a seizure other than a tonic-clonic seizure. People who have non-convulsive seizures will not slump forward unconscious at the end of it. And, the Bankstown Hospital medical notes refer to generalized seizure – generalized means tonic-clonic seizure.
In his expert report, Professor Somerville was asked to estimate the chances of Mr Robey having another seizure during the currency of the Class 2 medical certificate he seeks. The exact question was:
Assuming that Mr Robey has ceased taking anti-seizure medication, how long would be clinically indicated for observation before considering his fitness for an aviation medical certificate?
He answered as follows:
The answer to this question depends on what is considered the maximum acceptable risk of a seizure in a pilot. My understanding is that CASA uses a risk of 1% in the next 12 months (regardless of flying time) for Class 1. My understanding is also that for Basic Class 2 certificates, CASA uses the Australian commercial driving standards for seizures. This driving standard relies on a number of assumptions and is based on a maximum acceptable risk of a seizure in the next 12 months of about 2%. In the case of multiple seizures, it requires freedom from seizures for at least 10 years, an EEG within the last 6 months showing no epileptiform abnormalities and adherence to medical advice including taking antiepileptic medication if recommended. Mr Robey would not yet meet that standard because he has not yet achieved 10 years without seizures and has not had an EEG within the last six months that shows no epileptiform abnormalities (which is not to say that if he did have an EEG, it would necessarily show epileptiform abnormalities). However, under the Exceptional Cases standard, if a specialist in epilepsy believes that a person who fails to meet the standard for a licence may nevertheless be safe to drive commercially, the driver licensing authority may consider granting a licence. In Mr Robey’s case, it would be difficult to argue that his seizure risk is lower than other people with a history of multiple seizures who have experienced a seizure within the last 10 years (other than the fact that he has not had a recurrence in over 12 months without treatment). I assume that a “standard” Class 2 certificate (which I assume is what is sought by Mr Robey) requires the maximum risk of a seizure to be somewhere between those two figures (i.e. between 1% and 2%).
A comprehensive high quality review of the published evidence on seizure recurrence after antiepileptic drug withdrawal was published in Lancet Neurology in 2017. It found that a number of factors influence that risk, including epilepsy duration before remission, seizure-free interval before antiepileptic drug withdrawal, age at onset of epilepsy, history of febrile seizures, number of seizures before remission, absence of a self-limiting epilepsy syndrome, developmental delay, and epileptiform abnormality on EEG before withdrawal. The authors constructed an online calculator that takes these factors into account for an individual patient. Applying this to Mr Robey at the time of his medication withdrawal, the calculated risk of seizure recurrence within 2 years would have been 55%, and within 5 years would have been 68%. Mr Robey is now almost 2 years beyond that time. This means that, of these patients who have not had a seizure by 2 years after withdrawal, 29% will have a seizure within the next 3 years (68 – 55 = 13% of the whole group, expressed as a percentage of those 45% of the whole group without a seizure 2 years after withdrawal). This is the figure that would apply to Mr Robey. In people who have discontinued antiepileptic medication, the risk of seizures falls with the length of time without seizures since they withdrew their drug(s). A Korean study published in 2016 found that in those patients whose seizures returned after medication withdrawal, the average delay until the first seizure was 22 months (standard deviation 15 months). This was the average, so a significant number of patients experienced a return of their seizures later than 22 months after drug withdrawal.
Professor Somerville made it clear that his answer involved approximations only.
It seems clear from the evidence of Professor Somerville that Mr Robey: is epileptic, likely suffers from grand mal seizures, which involve convulsions; and has not yet reached the stage for a determination that he no longer has epilepsy, using the criteria recommended by the peak professional body of epilepsy specialists.
In Rent to Own (Aust) Pty Ltd and Australian Securities and Investments Commission [2011] AATA 689; 127 ALD 141 Downes J, as President of the Tribunal, and Deputy President P E Hack SC remarked at [41] to [44]:
The Tribunal, in its determinations, must be informed by matters of good administration. It needs to be conscious that it is, for example, fulfilling for this case, the role of regulator in connection with the licensing of credit providers. The appropriate level of protection of the public is, of course, vital to this activity.
None of this is to deny the very important role of the Tribunal in ensuring that individual justice is done. One of the great advances in public administration which was achieved by the establishment of the Tribunal was the placing of emphasis on considerations of individual justice in administrative decision-making. This was emphasised in a speech made by Sir Anthony Mason in 1989 when he gave as one of the five differences in reasoning between primary administrative decision-makers and decision-makers in review proceedings, the following (A. Mason, ‘Administrative Review : The Experience of the First Twelve Years’ (1989) 18(3) Federal Law Review 122 at 130):
Finally, he [the primary decision-maker] is inclined to subordinate the claims of justice of the individual to the more general demands of public policy and sometimes to adventitious political and bureaucratic pressures.
Ideals of individual justice do not, however, replace the demands of good administration.
Nor does focussing on the role of the Tribunal as an administrative decision-maker qualify the Tribunal’s power to depart from government policy: Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-5. The ability of the Tribunal to depart from government policy in a particular case is closely associated with the importance of achieving individual justice. Individual justice will generally be achieved, however, by making the preferable decision – even when that decision does not accord with government policy.
Very similar questions affect this matter. Core functions of CASA are concerned with the safety regulation of civil air operations in Australia including the issue of licences to pilots. Those regulatory functions affect the work of this Tribunal as part of the executive government.
We also heard from Dr Ryan, who has been a CASA Senior Aviation Medical Officer for the last 5 years. For 31 years, she had a history with the air force and was a doctor in that role for 15 years.
In Dr Ryan’s report, she stated that:
The normally acceptable risks for a commercial operation, requiring a Class 1 medical certificate, are in the range of 1-2.5% (annual risk of an event that can cause incapacitation). The normally acceptable risks for a private operation, requiring a Class 2 medical certificate, are in the range of 2-5%. Usually a pilot at the lower range can expect to get unrestricted certification and those above the lower limit can expect to have some conditions placed on the medical certificate.
These figures are in the nature of guidelines. Dr Ryan stressed that:
while numerical criteria assist by providing a level of consistency, because of the many variables in each different case, the ultimate decision is made on the basis of a judgment of whether there is a real and substantial (and not trivial) risk to the safety of air navigation.
We have sought to apply the same test in determining these proceedings.
The numerical guidelines to which we have referred apply not only to persons suffering from epilepsy, but also to others with physical conditions which might affect the ability to pilot aircraft. This Tribunal previously applied the CASA guidelines for Class 1 and Class 2 medical certificates, in the interests of safety and consistency in decision-making: see Collins and Civil Aviation Safety Authority [2017] AATA 2564. We respectfully agree with those reasons.
Similarly, and with particular reference to epilepsy, we also think it is proper in the interests of air safety to pay regard to the views expressed by the International League Against Epilepsy, the peak professional body of epilepsy specialists, as to when a person may be said no longer to suffer from epilepsy. As we have said, we reserve consideration for an appropriate case to consider whether CASA’s more stringent guidelines, should be preferred.
CASA will, as Dr Ryan pointed out, give consideration to the issue of a medical certificate subject to conditions, in the case of both Class 1 and Class 2 medical certificates, for persons within the ranges mentioned in [31] above. The regulations allow for consideration of whether any risks can be mitigated by appropriate conditions: CASR reg 11.056.
Both Professor Somerville and Dr Ryan had regard in seeking to identify in the case of Mr Robey his risk of suffering a further seizure to an article published in The Lancet Neurology in July 2017.[1] Professor Somerville indicated that he could not provide precise figures, but his answers set out in these reasons at [25] above contained some approximations. Dr Ryan’s report of February 2020, making use of the same article, arrived, at the date of her report, at an annualised risk of about 9.6%, well above the 2–5% risk level indicated by the guidelines for the issue of a Class 2 medical certificate.
[1] Herm J Lamberink et al, ‘Individualised prediction model of seizure recurrence and long-term outcomes after withdrawal of antiepileptic drugs in seizure-free patients: a systematic review and individual participant data meta-analysis’ (2017) 16 The Lancet Neurology 523.
Professor Somerville rather resisted giving evidence about the particular risks posed by the issue of a conditional Class 2 medical certificate to Mr Robey, since he is not a pilot. He said that if his feet were on the rudder pedals, there is a chance of the pedals being depressed, which commonly happens when people driving cars have seizures. He also said that the main concern about an atonic seizure is that the person would be completely unconscious during it, or they can be profoundly confused, and may be agitated if they are restrained.
Dr Ryan expressed the view that a real risk is posed by Mr Robey’s medical condition at this time because there is a real potential for partial or complete physical incapacitation, seizure, disorientation, memory loss, and/or impaired awareness of surroundings. At [46] and [47] of her statement she said:
As stated in the reviewable decision (T3, p8), examples of dangerous operations
following seizure, despite other pilots gaining control, can be found reported in
medical literature, including:
·A 45-year-old B-737 first officer experiencing an alcohol withdrawal seizure suddenly screamed, extended his arms up rigidly, pushed full right rudder, and slumped over the yoke during an approach. The aircraft descended to 1,000 feet above ground level in an uncoordinated turn to 25 degrees angle of bank before flight attendants could pull the first officer off the controls, allowing the captain to recover the airplane. “Mayday” calls were made, and the captain executed a missed approach before making a successful landing.
·“[sic] A 49-year-old captain stiffened so violently during an epileptic seizure after landing that he suffered a fractured shoulder and a lumbar compression fracture. At the same time, he applied such force to the rudder pedals that he caused the aircraft to turn sharply and stop suddenly. The first officer had to remove the captain from the controls to taxi the aircraft to the gate.
Dejohn, Charles & Wolbrink, Alex & Larcher, Julie. (2004). In-Flight Medical Incapacitation
In my opinion, experiencing a seizure during flight is inherently unsafe, whether the seizure be dynamic or subtle in nature. Every seizure presents its own unique risks. The lack of predictability as to the onset or type of seizure makes it difficult to adequately mitigate against such, particularly where there is a high potential for loss of consciousness or loss of bodily functions.
In her evidence in chief, Dr Ryan was asked about the conditions proposed by Mr Robey, in particular the proposed presence on board of a pilot licensed to pilot the aircraft and in charge of it (a safety pilot). She said that the licensed pilot might not notice any problem at first. She said that if the seizure proceeds further than its initial stages, it could present with fiddling or interfering with controls, and if it goes on to become a generalised tonic-clonic seizure, it could become quite violent, which could be distracting to a safety pilot. If the seizure took place during take-off or landing, it could be a disaster.
Dr Ryan indicated that the views she expressed reflected those of the Complex Case Management Committee (the CCMC) which considered Mr Robey’s application, being a group of doctors with varying backgrounds, all having experience in aviation medicine.
In cross-examination by Mr Robey, Dr Ryan was asked whether the CCMA realised that he would rarely, if ever, be piloting the aircraft, and never during take-off or landing. She said that those circumstances were not necessarily relevant because if a Class 2 medical certificate were issued, Mr Robey would be permitted to fly the aircraft, including during take-off and landing.
Mr Robey put his application on the basis that he would first regain the necessary skills required to pass the Instructor Rating Proficiency Check. He intends to deliver flight training to pilots who already hold a recreational pilot licence and desire instruction in order to obtain a private pilot’s licence, a commercial pilot licence or an instructor rating.
On the question of CASA’s concern that if he were to become incapacitated and it may not be apparent, Mr Robey observed that if the pilot under training were to ask for advice and receive no response, he or she would continue to fly the aircraft and proceed to land at the most appropriate aerodrome.
As to the perceived risk of interfering with controls, he pointed out that Professor Somerville had characterised that risk as ‘very low’.
In our opinion, the statement of Professor Somerville that Mr Robey likely has had grand mal seizures in the past needs to be borne in mind, even if he is not in control of the aircraft. His condition next to the pilot in control and near equipment such as rudder pedals, might pose a risk to safe aviation. We consider that if his application were acceded to at this time, those risks are real and not trivial. We also think that there is a risk that a licensed pilot flying the aircraft may not recognise the early onset of a seizure, if Mr Robey has one.
Indeed, the mere fact that it may properly be said that Mr Robey remains epileptic satisfies us that although the conditions proposed by Mr Robey are rational and represent his genuine attempt to mitigate such risks as remain, we cannot be satisfied that they will promote safe aviation. That is because the possible adverse consequences of him suffering a seizure are hard to predict. If he were to be in control of the aircraft or near the controls during landing or take-off, or while the aircraft was at a low altitude, involuntary movements of his might interfere with the safety pilot or the controls. He therefore proposed an additional condition to the effect that in such circumstances, he be required to move his seat rearward to the maximum extent. That again is a sensible condition, if conditions were being contemplated. However, it seems to us that conditions may be insufficient to mitigate the risks that his present condition poses to safe aviation.
It seems to us that conditions are appropriate only if the applicant for a Class 2 medical certificate at least marginally falls within parameters for the issue of a licence. Mr Robey is not within those parameters, as appears from the evidence Dr Ryan, who had the support of other medically qualified aviation experts with whom she consulted.
DECISION
For those reasons, we would affirm the reviewable decision.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC, Emeritus Professor P A Fairall, Senior Member
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Associate
Dated: 12 April 2021
Date(s) of hearing: 20 January 2021 Date final submissions received: 5 February 2021 Applicant: In person Solicitors for the Respondent: Civil Aviation Safety Authority Legal and Regulatory Affairs
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