TERRENCE GERALD MULHOLLAND and CIVIL AVIATION SAFETY AUTHORITY
[2009] AATA 171
•17 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 171
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2889
GENERAL ADMINISTRATIVE DIVISION ) Re TERRENCE GERALD MULHOLLAND Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal The Hon. C. R. Wright Q.C., (Deputy President)
Dr R Walters (part-time Member)
Date17 March 2009
PlaceHobart
Decision
The decision under review is affirmed.
.(Sgd) Hon C R Wright QC
Deputy President
CATCHWORDS
Civil Aviation – Class 1 and Class 2 medical certificates issued by CASA subject to conditions – applicant having history of unexplained losses of consciousness – applicant contending that (a) events of lost consciousness probably due to inappropriate anti-hypertensive medication which had been discontinued and (b) risk of loss of consciousness should be assessed as very slight due to effluxion of time since last episode and resultant statistical improbability – unsatisfactory evidence of applicant and lack of objective evidence to support medical evidence adduced in his favour – decision under review affirmed
LEGISLATION
Civil Aviation Act 1988
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Mulholland and CASA [2007] AATA 1952
REASONS FOR DECISION
17 March 2009 The Hon. C. R. Wright Q.C., (Deputy President) and Dr R Walters (part-time Member) 1. A commercial pilot licence holder cannot exercise the privileges of that licence without holding a class 1 medical certificate. A private pilot licence holder cannot exercise the privileges of that licence without holding a class 2 medical certificate.
2. On 18 June 2008 CASA issued Class 1 and Class 2 medical certificates to the applicant. Both certificates were subject to conditions restricting the circumstances in which the applicant is permitted to fly an aircraft. The applicant has sought review of CASA’s decision to grant these certificates, claiming that the same are unduly restrictive and impinge upon his capacity to earn a living as a pilot instructor.
3. On two previous occasions CASA has issued to the applicant restricted medical certificates in similar terms. On each occasion the applicant has challenged those restrictions by applying for review to the AAT. On each occasion the Tribunal has affirmed CASA’s decision. The relevant certificates are normally issued by CASA in respect of a 12 month period. The last AAT decision affirmed the CASA licensing decision made on 12 June 2007. The relevant certificates issued to the applicant consequent upon that decision expired on 11 June 2008. The current medical certificates issued by CASA will expire on 17 May 2009.
4. On each occasion that the AAT decided to affirm CASA’s earlier decisions it did so on the basis that the applicant’s history of several events in which he had suddenly and unexpectedly lost consciousness, were not adequately explained or diagnosed by medical and other evidence and that such a condition constituted an unacceptable risk to air safety unless conditions such as those in fact imposed by CASA were applied.
5. The applicant has argued at the hearing in respect of the current review application:
(a) That evidence exists that should persuade the Tribunal that the applicant’s susceptibility to syncopal events leading to loss of consciousness or dizziness was a consequence of blood pressure medication which he no longer uses.
(b) That as a consequence his medical condition no longer constitutes an unacceptable risk to his being permitted to fly solo, albeit for limited periods of time, during the currency of his licence.
6. Whilst an examination of these issues involved revisiting some aspects of the evidence adduced on each of the earlier review applications, it was unnecessary for the presently constituted Tribunal to deal with potentially difficult issues such as estoppel, issue estoppel, or res judicata as the applicant’s case was essentially based on new evidence (properly so called) consisting of:
(a) Evidence from Drs Colquhoun and Dr Emmett affirming or modifying their previously expressed opinions based upon an updated account of the applicants health and symptoms since he last gave evidence in August 2007; both doctors now expressing the opinion that the applicants syncopal events in the past are likely to have been due to blood pressure medication which has now been discontinued.
(b) Statistical evidence from Dr Nilsson and Professor Delbourgo relating to the degree of risk of a further syncopal event based upon the frequency of such events in the past and the absence of such events in recent years.
7. In considering this new material we have taken account of the evidence given on the two previous AAT reviews, the decision of each of the previous AAT Tribunals, the T-documents referred to in the present review and the documentary and oral evidence presented to us at the present hearing. We have also carefully considered the detailed submissions of the advocate for the applicant (Dr. Nilsson) and solicitor/counsel for the respondent, Mr Anastasi.
8. We do not intend to explore the whole of the medical evidence in detail, apart from the new evidence given by Dr Colquhoun, Dr Emmett and Dr Sham Tak Sum. We find the careful analysis of the evidence these and other doctors gave to a previous Tribunal in August 2007 has been compendiously accurately and most helpfully set forth in the decision of that Tribunal delivered on 14 November 2007 (2007) AATA 1952, from (and including) paragraphs 5-26 and 47-60. We also found ourselves to be of the same opinion as the previous Tribunal in relation to the conclusions which should have been and were drawn by it on the basis of the evidence presented at that time. As mentioned above we see our task as evaluating:
(a) The claimed cause of the applicant’s syncopal episodes based upon the effluxion of time and the modified medical opinions of Drs Emmett and Colquhoun, and
(b) The nature of the risk, if any, presently posed by the applicant’s current state of health.
9. It should be noted at the outset that the evidence of both Dr Emmett and Dr Colquhoun is based to a very large extent upon the history provided to them by the applicant and this lack of objective evidence is the source of some difficulty to us. Of particular concern is the pivotal importance to their opinions of the acceptance of the applicants claim as to when, in relation to his motor accident in August 2006, he last took a dose of blood pressure medication. He says in paragraph 22 of his affidavit (Exhibit A8) “It is possible that, during June and July 2006, I occasionally took some of the remaining Coversyl if I thought my bp was getting too high”.
10. This evidence was at variance with the evidence which he had given on the occasion of each of his two previous AAT review applications. At the first hearing he said he had ceased taking Coversyl in April 2006 and at the second hearing he said the last occasion of taking Coversyl was in June 2006. For the purposes of the applicants’ present case it was necessary to consider the probability of blood pressure medication having been instrumental in causing an unexpected syncope immediately prior to a serious single vehicle motor accident in which he was involved as the driver on 2 August 2006. If one considers the way pharmaceutical agents are processed by the human body, unless such medication had been taken by the applicant within 2 or 3 days of that accident there seems to be no real prospect of such a medication having caused or contributed to such an accident. In this context it is also worth noting that Dr Colquhoun says in his affidavit (Exhibit A2) that he measured the applicants blood pressure at 125/85 on the 31st July 2006; two days before the accident. He states that he considered that blood pressure to be “lower than advisable for this particular patient” but makes no suggestion that he questioned the applicant as to his taking blood pressure medication or that the applicant claimed to have done so.
11. We find the applicant to be an unreliable historian as to this matter and do not accept the proposition that he had taken Coversyl or any other blood pressure lowering medication at any relevant time before the accident of 2 August 2006. We also find some support for this conclusion in the Hobart Private Hospital records (Exhibit R1) which tend to suggest that the applicant was reluctant to disclose the frequency of dizzy spells and/or syncopal events which had occurred over the preceding months. The applicant’s representative and advocate Dr Nilsson was critical of the evidentiary value of the hospital records, correctly making the point that what they contained was essentially hearsay evidence. However it has long been recognised that notations made in records of this kind by persons having a duty or a practice of recording facts such as histories, symptoms or events are admissible in evidence as an exception to the hearsay rule – principally, no doubt, because such material is normally recorded contemporaneously, or nearly so, by persons who are at the time attempting to assist their patient and may be safely assumed to have no interest in recording false details for devious motives. As such hospital and medical records frequently have a significant role in resolving disputed issues of fact.
12. We think it obvious that the applicant realised by August 2006 that the more frequently these syncopal events occurred the more likely it would be that he would be unable to regain an unrestricted licence or, even worse, may lose his licence altogether.
13. Once it is accepted that the August 2006 accident cannot be confidently attributed to the adverse iatrogenic effects of blood pressure lowering medication the conclusion that the applicant’s syncopal and dizzy events resulted from such a factor as suggested by Drs Emmett and Colquhoun must be approached with circumspection. On 8 January 2007 Dr Colquhoun attributed the applicant’s syncopy on 2 August 2006 to the applicant going “overboard” with his low salt diet. At that stage, presumably, the applicant had made no suggestion to Dr Colquhoun that blood pressure pills were the culprit. Dr Colquhoun has agreed during his evidence before this Tribunal that his “90%” certain diagnosis of Mr Mulholland’s blood pressure problem as causing the syncopal events which he had experienced was based mostly upon the history provided to him by the applicant rather than previous documents or materials provided by other medical practitioners or any objective measurements. Unfortunately we consider that the applicant is not only unreliable as an historian but has also been somewhat selective in the information he gave to this Tribunal at the hearing and that which he has given to his medical advisers in the past.
14. An alternative explanation for the applicant’s car accident on 2 August 2006 emerged from the medical evidence of Dr Colquhoun viz that he may have been suffering from dehydration associated with the low sodium diet which he was then, and still is, following. However, as with the anti-hypertensive medication theory, there is no acceptable evidence to support this conclusion with any degree of confidence. Dr Colquhoun acknowledged that a large percentage of syncopes – 30% - can only be attributed to idiopathic causes.
15. Dr Emmett, who has had a long association with the applicant both as his DAME, general practitioner and social acquaintance and who has himself been tested for components of his pilots’ licence by the applicant, has not previously subscribed to the view that the applicant’s syncopal condition is attributable to the unwanted side effects of anti-hypertensive medication. Indeed he said he was very surprised to learn in 2003 that CASA had provided the applicant with unrestricted Class 1 and Class 2 certificates because “no definite cause had been diagnosed” for his condition (30/21). He remained doubtful of the applicant’s fitness to hold an unrestricted licence after examining him in May 2007 and expressed this opinion when reporting to CASA as the applicant’s DAME. However, he has now modified his views, due, it seems, mainly if not entirely, to the passage of time and the absence of any syncopal event, again as reported by the applicant, since August 2006.
16. At paragraphs 6 and 7 of his declaration of 1 October 2008 (Exhibit A4) Dr Emmett expresses his current opinion in the following terms:
6. “I have pointed out in the past that an iatrogenic cause for Mr Mulholland’s syncopes will be most difficult to prove unequivocally, except through the passage of time during which he takes no hypertensive medication and suffers no more syncopes. However, on the understanding that the patient has not suffered syncope or the previous accompanying symptoms in the past two years, I find this explanation now to be satisfactory.
7. I accept that Mr Mulholland is now following his therapeutic plan and, so long as he does this, stays completely off hypertensive medication and his blood pressure remains within reasonable bounds, he is unlikely to suffer any further episodes.”
17. Based upon his past impartial and objective approach it would be unfair to suggest that Dr Emmett has been less than frank and direct with the Tribunal and his assessments must be weighed in the balance with other professional opinions in relation to the diagnostic process required in this case. On the other hand it should be recalled that Dr Emmett prescribed Coversyl for the applicant throughout the greater part of 2005, apparently being well aware that his patient had been involved in a motor accident resulting from syncope in December 2004. Dr Emmett was clearly aware that the applicant suffered from “white coat” effect when testing his blood pressure in the surgery. We find it difficult to accept that Dr Emmett would have continued prescribing this medication over an extended period of time if, in doing so, he knew or ought to have known that he was effectively causing the applicant’s ambient blood pressure to fall to excessively low levels. It does not appear that he had any such concerns at the time. In any event Dr Emmett’s present endorsement of the applicant’s theory as to medication being the cause of his syncope problems is significantly qualified.
18. In our opinion the key question to be confronted in this case is this. Has it been established to our reasonable satisfaction that the applicant’s tendency to experience unexpected loss of consciousness can and should be attributed to the iatrogenic effect of medication or dehydration or a combination of both, and, if “yes”, are those factors now sufficiently controlled so that the likelihood of the applicant endangering air navigation if flying an aircraft solo has been eliminated.
19. Having considered the evidence of Dr Colquhoun, Dr Emmett and the applicant it is still not possible for us to say that we are confident that the causes of the applicant’s syncopal events have been established. We are not confident that a sufficient period has passed since August 2006 to enable such a conclusion to be reached based upon the effluxion of time alone, but, in any event, we also feel uneasy in accepting the applicant’s evidence as to the number, duration and nature of episodes of dizziness and loss of consciousness both before and since that date.
20. However, if we should be wrong as to either or both of these conclusions there is still the very difficult problem for the applicant emanating from the opinions of many well regarded medical practitioners including, for example, Dr Luke Galligan, an expert cardiologist consulted by Dr Colquhoun in the process of investigating the applicant’s condition in March 2007. Dr Galligan’s views were accurately summarised by the last AAT Tribunal when reviewing the medical evidence in its decision of 14 November 2007 at page 22 when it said:
“(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.”
At paragraph 51 of its decision the Tribunal said this:
“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.”
There is no need for us to reproduce the whole of material mentioned by the Tribunal leading up to this conclusion – it is all neatly summarised in the earlier part of its written reasons. We are content to record our agreement with the conclusion expressed.
21. Of themselves these findings would be enough to dispose of this application to review in the respondent’s favour but, in deference to Dr Nilsson’s interesting approach to the question of risk assessment based upon the statistical evidence provided by Professor Robert Delbourgo, we think that additional comments on this issue are required. However, those comments can be made briefly. We have no reason to doubt the accuracy of Professor Delbourgo’s assessment of random event risk but see it essentially as a statistical exercise which simply reinforces the almost obvious proposition that the passage of time without the re-occurrence of previously experienced random events reduces the chance of such an event occurring in the future or during a particular time interval in the future. However, if the cause of such an event is unknown or uncertain, as in the present case and, if the happening of such an event may create catastrophic damage or injury to one or more individuals, a judgement must be made how best to avoid or lower that risk. In the real world such a judgement cannot be dictated by mathematical formulae but must be based upon a consideration of available evidence and a balancing of all factors including, of course, the personal circumstances of the person seeking permission to undertake the risk fraught activity. This point was made in the evidence of Dr Sham Tak Sum at pp. 127-130 of the transcript.
22. We think it is useful to repeat the views expressed by the members of the last Tribunal which, once again, we fully endorse. The following passage is worth repeating in full.
“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 Mullholand 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 a real and not unimaginable 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. Nor is this 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 even if loss of consciousness does not 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:
"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.”
23. Dr Nilsson submitted that alternative conditions imposed upon the applicant’s medical certificates allowing him very limited periods of flight without a co-pilot and for training or certification purposes would meet legitimate or reasonable safety concerns in lieu of those which were manifested by CASA’s current conditions. We do not agree. In our opinion there would be no justification for our meddling with the conditions regarded as appropriate by CASA having regard to the essential lack of merit in the applicant’s case. It is our opinion that the applicant’s condition would still constitute a real risk to air navigation if he were to be permitted to take control of an aircraft without the presence of a co-pilot. We regard the conditions imposed by CASA to be reasonable and appropriate.
CONCLUSION
24. Accordingly the decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright Q.C., (Deputy President) and Dr R Walters (part-time member)
Signed: H Healy (Administrative Assistant)
Date/s of Hearing 3 & 4 February 2009
Date of Decision 17 March 2009
Advocate for the Applicant Dr Carl Nilsson
Solicitor for the Respondent Mr Adam Anastasi, CASA
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