Vranic and Civil Aviation Safety Authority

Vranic and Civil Aviation Safety Authority [2019] AATA 2367 (2 August 2019)
Division:GENERAL DIVISION
File Number: 2018/3095
Re:Michael Vranic
APPLICANT

AndCivil Aviation Safety Authority
RESPONDENT

DECISION
Tribunal:R. Cameron, Senior Member and Dr. S. Lewinsky, Member.
Date:2 August 2019
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
R. Cameron, Senior Member
Catchwords
CIVIL AVIATION – Medical standards 1 and 2 – Refusal to issue the Applicant with a Class 1 and Class 2 Medical Certificate – Applicant refuses to obtain psychiatric report - Reviewable decision affirmed
Legislation
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Regulations 1998 (Cth)
REASONS FOR DECISION
R. Cameron, Senior Member and Dr. S. Lewinsky, Member.
2 August 2019
INTRODUCTION

On 31 May 2018 the Respondent (“CASA”) refused to issue the Applicant with a Class 1 and Class 2 Medical Certificate (“the reviewable decision”). It is this decision the Applicant seeks review of in the Tribunal.
THE REGULATORY SCHEME
Under section 3A of the Civil Aviation Act 1988 (“the CA Act”), its main object is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents. The Respondent is a body corporate established under the provisions of section 8 of the CA Act. In exercising its powers and performing its functions, the Respondent must have regard to the safety of air navigation as the most important consideration.[1]
[1] Section 9A of the CA Act.
Subpart “67.C-Medical Certificates” of “Part 67 Medical” of the Civil Aviation Safety Regulations 1998[2] (“CASR”) prescribes the classes of medical certificate[3] and applicable medical standards for each such class of certificate.
[2] Made pursuant to section 98 of the CA Act.
[3] Three classes of medical certificates are specified in Regulation 67.145 Kinds of medical certificates.
The Table in Regulation 67.150[4] of the CASR prescribes the Class 1 medical standard.
[4] Part of Regulation 67.150 Who meets medical standard 1.
The Table in Regulation 67.155[5] of the CASR prescribes the Class 2 medical standard.
[5] Part of Regulation 67.155 Who meets medical standard 2.
More specifically, each of the Tables in Regulation 67.150 and 67.155[6] detail the relevant criteria for each medical standard that a person must satisfy. The relevant criteria cover abnormalities, disabilities, functional capacity and mental fitness. The contents of each of the Tables in Regulation 67.150 and 67.155 are referred to for their full force and effect and do not need to be reproduced for the purposes of these reasons.
[6] In these reasons the term “the Tables” is used to collectively refer to Tables 67.150 and 67.155.
Regulation 67.165 provides that if CASA has reason to believe that an applicant for the issue of a medical certificate has a condition (including a condition other than a medical condition) that may, if he or she is issued with the medical certificate, endanger the safety of air navigation, direct the applicant to, amongst other things, submit to an examination carried out by a medical practitioner, specialist psychiatrist, or identified healthcare professional of another kind specified in the direction.[7]
[7] The precise language used in Regulation 67.165 Directions about examinations for issue of medical certificates is referred to for its full force and effect.
Regulation 67.180 provides that CASA must not issue a medical certificate to an applicant if he or she does not satisfy the requirements of the regulation. Those requirements include that the Applicant undergo any relevant examinations that in the opinion of CASA, are necessary in the particular case. CASA may direct each relevant examination by a specialist medical practitioner or any other medical practitioner for the purposes of sub-regulation 67.180 (2). Put another way, CASA must not issue a medical certificate to an applicant if it is satisfied that such an applicant does not satisfy the requirements of that regulation.
ISSUES BEFORE THE TRIBUNAL
The Tribunal considers that it must determine the following issues:
(a)Did the Respondent have reason to believe that the Applicant had a condition that may, if he were issued Class 1 and Class 2 medical certificates, endanger the safety of air navigation such that it was entitled to direct the Applicant to submit to an examination carried out by a psychiatrist?
(b)Did the Applicant submit to an examination carried out by a psychiatrist as directed by the Respondent?
The Applicant in paragraph two of his Statement of Facts, Issues and Contentions asserted that there were four issues for determination by the Tribunal. They included whether or not the Applicant met the relevant medical standards for the issue of a Class 1 and/or Class 2 medical certificate; and also whether any conditions could be imposed on such medical certificates in the event that there was a decision made to issue them. The Tribunal does not accept this contention on a proper consideration and construction of Part 67.C-Medical certificates of CASR to the facts of this case.
THE EVIDENCE BEFORE THE TRIBUNAL
The Applicant provided a witness statement and gave evidence from the witness box. The Applicant also lodged and served a bundle of documents that was largely irrelevant; which whilst not formally received into evidence was read and considered by the Tribunal.
Dr Sanjiv Sharma provided a witness statement and gave evidence from the witness box.
The Respondent also lodged and served a Statement of Facts, Issues and Contentions.
THE APPLICATION FOR MEDICAL CERTIFICATES AND THE EXCHANGE OF CORRESPONDENCE BETWEEN THE PARTIES CONCERNING A REPORT FROM A PSYCHIATRIST
The Applicant applied for a Class 1 and Class 2 medical certificate on 26 July 2017. As part of the application process a medical examination was conducted by Dr Rohan Weerasinghe, a Designated Aviation Medical Examiner (“DAME”) on 26 June 2017. Dr Weerasinghe prepared a report in the form of a prescribed form called “CASA Medical Examination Summary with Medication”.[8] The Examiner’s Summary contained a section headed “Medical Assessment”. Under that heading it asked the question: “Do you have any doubt that the Applicant is fit to exercise the privileges of the licence held/sought?” In response, Dr Weerasinghe recorded that the Applicant “may need further psychiatric evaluation”[9].
[8] Document T 11 of the T documents. It is referred to in the T documents as “Examiner’s summary.”
[9] The relevant portion of the report is part of document T 11 and is on page 63 of the T documents.
Following receipt of the CASA Medical Examination Summary, it was considered by Dr Elizabeth Ryan, Senior Medical Officer (Aviation Medicine) of the Respondent. Dr Ryan sent a message to Dr Weerasinghe requesting further detail from him concerning his observation that the Applicant may need further psychiatric evaluation. Dr Weerasinghe responded to Dr Ryan’s request concerning the Applicant, stating: “He kept on repeating himself & also preoccupied thinking. He was unable to carry on a conversation. No previous psychiatric illness has been disclosed. I would prefer a specialised review.[10]” Following receipt of the message from Dr Weerasinghe, Dr Ryan wrote to the Applicant on 1 July 2017, informing him that the Respondent required a report from a psychiatrist with respect to several matters referred to therein.[11]
[10] The messages passing between Dr Ryan and Dr Weerasinghe were tendered in evidence before the Tribunal as exhibit "R 3".
[11] The letter of 1 July 2017 from Dr Ryan to the Applicant is document T 17 of the T documents. Its contents are referred to in their entirety and speak for themselves.
The letter from Dr Ryan to the Applicant articulated the reasons why the Respondent required a report from a psychiatrist. The letter explained that it was necessary for the Respondent to have this information to continue with his medical assessment. It said that the Applicant displayed some signs of preoccupation and disordered thinking, which required further examination. Dr Ryan stated that a report from a psychiatrist was being sought due to the necessity for the Respondent to ensure that any condition of the Applicant, and any treatment of such condition, did not pose a risk to aviation safety. Further grounds were properly included in the letter, which need not be reproduced in these reasons.
The Applicant promptly responded to the letter from Dr Ryan by email on 5 July 2017. He tackled the observations made in her letter, conceding that he had previously suffered an “anxiety episode”, and expressing an opinion (probably medical) as to its effects. He did state in the response that he was arranging the suggested report from a psychiatrist[12].
[12] The email is document T 18 of the T documents. The precise words used in the email by the Applicant are referred to in their entirety.
On 20 July 2017 the Applicant, by email to the Respondent, requested that the requirement to obtain a report from a psychiatrist be waived. The ground that he relied upon was that he did not agree with the facts that had been raised in previous correspondence to him by the Respondent. He also objected to the cost of obtaining such a report. He described the requirement as onerous, particularly given his current financial situation where his only source of income was “the pension”.
The Applicant continued to refuse to obtain a psychiatrist’s report. By email on 3 August 2017, Dr Sharma then a Senior Medical Officer, Aviation Medicine, reiterated on behalf of the Respondent the need for him to obtain a report from a psychiatrist. Dr Sharma provided copies of the Tables in Regulations 67.150 and 67.155[13]. Dr Sharma explained that during an assessment of any medical application, the Respondent does not diagnose an Applicant with any medical condition. Instead, the assessment is based upon the provision of specialist reports provided by an applicant for a medical certificate, or specifically sought by the Respondent. He noted that in the case of the Applicant there was no diagnosis of a psychiatric illness or psychological disorder. Based upon the findings in the CASA Medical Examination Summary, the Respondent had advised him to undergo a further evaluation by a psychiatrist. Dr Sharma then explained that this request was made under CASR 67.165, a copy of which was reproduced in the email. He repeated, as had been explained in the letter from Dr Ryan of 1 July 2017, that the Respondent is unable to cover any costs incurred in obtaining a report. The Applicant was invited to reconsider whether he would like to provide a psychiatrist’s report.
[13] The contents of the email are referred to in their entirety. It is document T 21 of the T documents.
Following Dr Sharma’s email, the Applicant did not obtain a report from a psychiatrist as had been requested. Further correspondence passed between the parties, which need not be referred to in these reasons in any detail. The upshot of this correspondence was that the Applicant continued to refuse to obtain a psychiatrist’s report.
On 23 March 2018 Dr Sharma wrote a lengthy letter to the Applicant informing him of the Respondent’s intention to refuse to issue him with Class 1 and Class 2 Medical Certificates[14]. Dr Sharma opined that because the Respondent had not received from him the requested psychiatric report, given the time that elapsed since it had first been requested, the Applicant had been afforded an adequate opportunity to comply with such request. Therefore, because the requested psychiatric report had not been produced an assessment of his application as it had been made had now been completed.
[14] Dr Sharma's letter to the Applicant of 23 March 2018 is document T 33 in the T documents.
Dr Sharma expressed the opinion in the 23 March 2018 letter, based upon the assessment, that the Applicant did not currently meet the medical standards described in the Tables in Regulations 67.150 and 67.155. This was because of the Applicant’s stated mental condition and the concerns raised by the DAME in the initial medical examination. Dr Sharma held concerns as to the Applicant’s current mental fitness based upon the email communications that he had provided, which indicated some potential disordered thought processes. In that setting, in the absence of the required psychiatric report, he could not be satisfied that the Applicant met the applicable medical standards. He expressed an opinion that issuing the Applicant with a medical certificate would present an unacceptable risk to the safety of air navigation. This was because it may cause symptoms or side-effects which would interfere with his ability to safely exercise the privileges of a Class 1 and Class 2 licence, including but not limited to:
(a)reduced concentration and memory;
(b)impaired cognition;
(c)impaired performance; and
(d)lack of situational awareness.
Dr Sharma in the 23 March 2018 letter gave the Applicant a further opportunity to provide any further evidence (specialist reports, results of investigations etc.) or submissions as he may see fit. Dr Sharma advised the Applicant that should he wish to respond, any information he provided should demonstrate why, in his opinion, he met the medical standard; or why the issue of a medical certificate would not be likely to affect the safety of air navigation. The response needed to be supported by clinical evidence, rather than personal or professional opinion.
On 23 March 2018 the Applicant responded by email to Dr Sharma[15]. Part of the email is written in an unfortunate and intemperate manner; and made unwarranted comments concerning the Respondent and the way it was dealing with his application. He “categorically” refused to obtain a psychiatric report and denied that he had any conditions or history as alleged.
[15] The email of 23 March 2018 from the Applicant to Dr Sharma's is documented as T 34 of the T documents. It is a discursive document and omits in many respects to address the specific matters raised in Dr Sharma's letter to him of 23 March 2018.
On 31 May 2018 Dr Sharma made the reviewable decision in a letter which was sent to the Applicant. The letter repeated that, despite having had ample opportunity to do so, the Applicant had not provided a report from a psychiatrist as previously requested in accordance with CASR 67.165. In the absence of a psychiatric report, which was in his opinion necessary to properly determine his application, Dr Sharma could not be satisfied that the Applicant met the applicable medical standards.
CONSIDERATION
Each of the Tables enumerates criteria applicable to the relevant medical standard. Dr Sharma in his evidence (which was not challenged by the Applicant and is accepted by the Tribunal[16]) identified the criteria in the Tables applicable to the Applicant (and the subject matter of the reviewable decision) as abnormalities, disabilities and functional capacity criteria,[17] together with mental fitness criteria[18]. Those medical criteria for the “abnormalities” item provide that the Applicant must have no safety-relevant[19] condition 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; and
(d)a sequela of an accident or a surgical operation.
[16] The Tribunal found Dr Sharma to be a very impressive and credible witness. Several very serious allegations were made by the Applicant against Dr Sharma in correspondence, his witness statement and in cross-examination. They were denied by him. The Tribunal does not hesitate to accept Dr Sharma’s evidence concerning these allegations. Dr Sharma, to his credit, bore the Applicant no ill-will by reason of such allegations.
[17] Item 1.1 of Table 67.150 and Item 2.1 of Table 67.155.
[18] Item 1.4 of Table 67.150 and Item 2.4 of Table 67.155.
[19] Emphasis added.
Those medical criteria for the “mental fitness” item provide that the Applicant has no established medical history or clinical diagnosis of any of the following conditions to the extent that they are safety-relevant[20]:
(a)psychosis;
(b)significant personality disorder; and
(c)significant mental abnormality or neurosis.
[20] Emphasis added.
Regulation 67.015 prescribes that 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 license that he or she holds or has applied for. This definition is consistent with the primacy of safety considerations as the main objects of the CA Act (not to mention CASA’s obligations) referred to above.
Regulation 67.165 confers discretion on the Respondent to direct the applicant for a medical certificate to submit for an examination by a specialist psychiatrist. Such discretion can be exercised if the Respondent has reason to believe that the Applicant has a condition that may, if he or she is issued with such certificate, endanger the safety of air navigation. This requires a determination of whether there is reason to believe that the Applicant has a condition of the kind identified in the Tables applicable to his application for the relevant medical certificates.
In determining whether there is reason to believe that the Applicant had the conditions concerned, it is necessary to examine the evidence before the Respondent. It should be repeated that this evidence must be examined in the context of the objects of the CA Act, which place a primacy on air safety considerations.
The Respondent relies upon the examination of the Applicant by the DAME, Dr Weerasinghe’s subsequent observations recorded in the Examiner’s Summary and the later message to Dr Ryan. In the Examiner’s Summary, Dr Weerasinghe stated that the Applicant may need further psychiatric evaluation. When further details of this observation were requested by Dr Ryan, Dr Weerasinghe went further, providing details of what he observed of the Applicant during the examination. He expressed a concluded opinion that he would prefer a specialised review.
Dr Sharma explained to the Tribunal in considerable detail the effect that abnormalities or mental fitness conditions within the meaning of the Tables can have on an individual in-flight or command of an aircraft in various settings. That evidence was to the effect that it could impair or reduce the ability of someone to carry out their functions as a pilot. He stated that a failure to satisfy the relevant items of the Tables is likely to be associated with a number of potential symptoms and side-effects. These may adversely affect an individual’s ability to safely perform tasks. Those potential symptoms or side-effects are identified as including, but not limited to:
(a)reduced concentration and memory;
(b)impaired cognition;
(c)impaired performance;
(d)lack of situational awareness;
(e)rapid, incoherent, or illogical speech;
(f)tangential speech patterns;
(g)frequent interruptions in a person’s train of thought; and
(h)inability to follow a logical train of thought or to clearly tell a story or convey an idea.
Such conditions are “safety-relevant” within the meaning of Regulation 67.015. Dr Sharma explained the opinions expressed by Dr Weerasinghe in both the Examiner’s Summary and the message to Dr Ryan raised the question of whether the Applicant had the conditions in the Tables. This evidence of Dr Sharma was not challenged by the Applicant. It is accepted by the Tribunal.

Dr Sharma gave evidence that having received the opinions of Dr Weerasinghe, the Respondent was obliged to satisfy itself that the Applicant did meet the relevant medical standards contained in the Tables. He also stated that any medical condition was not “likely to reduce[21]” his ability to pilot an aircraft or that allowing him to fly was not “likely to endanger the safety of air navigation”.[22] The Tribunal accepts this evidence of Dr Sharma. The Tribunal also accepts as a correct statement the obligation cast upon the Respondent regulator. This is as a result of taking into account the information it had received from Dr Weerasinghe, and the information contained in subsequent correspondence from the Applicant following his receipt of the letter from Dr Ryan of 1 July 2017.
[21] Regulation 67.015.
[22] Regulation 67.165.
The Tribunal noted that, repeatedly throughout the course of his evidence, Dr Sharma emphasised that he had not, nor had the Respondent, reached a conclusion that the Applicant had any of the conditions described in the Tables. As he quite properly put it, he was not able to properly determine the Applicant’s current medical status. What he was seeking, as had been recommended by Dr Weerasinghe, was a report from a specialist psychiatrist that would answer the question whether the Applicant had any of those conditions.
The Tribunal has taken into account the contents of the Examiner’s Summary, the message received from Dr Weerasinghe, and the evidence of Dr Sharma that the failure to satisfy the relevant items of the Tables is likely to be associated with a number of potential symptoms and side-effects which may adversely affect an individual’s ability to safely exercise the tasks cast upon them when flying an aircraft. This has led the Tribunal to a conclusion that the Respondent properly had grounds to form the belief it did, that the Applicant had a condition within the meaning of Regulation 67.165. Having properly formed the belief that enlivened the discretion to direct the Applicant to submit to an examination carried out by a specialist psychiatrist, the Respondent did so. Therefore, the letter from Dr Ryan of 1 July 2017 requesting the provision of a report from a psychiatrist was properly forwarded to the Applicant. The subsequent requests made by Dr Sharma to the Applicant were also, by reason of the matters observed earlier, properly made within the meaning of Regulation 67.165.
The Applicant on his own admission did not submit to an examination carried out by a psychiatrist. A report from a psychiatrist was not produced in accordance with the requests made, commencing with the letter from Dr Ryan on 1 July 2017. The Applicant denied having any conditions and refused to obtain a report from a psychiatrist. These sentiments, which were contained in the correspondence referred to previously, were maintained in the Applicant’s witness statement and throughout the course of his oral evidence before the Tribunal.
Having not undergone a relevant examination by a psychiatrist as properly directed by the Respondent under Regulation 67.165 (1), the requirements under Regulation 67.180 obliging the Respondent to issue the medical certificates were not met.
Given the evidence that was available to the Respondent, including Dr Sharma, and in the absence of a report from a psychiatrist, which in the opinion of Dr Sharma was necessary to properly determine the Applicant’s application, Dr Sharma was not satisfied that the Applicant satisfied the applicable medical standards enumerated in the Tables[23].
[23] Paragraphs 19 and 23 of the witness statement of Dr Sharma. He also gave this evidence consistently in the course of his evidence in the witness box.
The Tribunal notes, that Dr Sharma gave evidence which was once again not challenged. The decision was not made solely by him. Dr Sharma described that the Respondent considers such cases by what is known as a “complex case management process”, which is undertaken by peer review. The collective view of the peer review process conducted by the Respondent together with Dr Sharma was that there was no information that enabled the Respondent to conclude that the Applicant met the requirements of Regulation 67.180.
Therefore, the Respondent could not issue a medical certificate to the Applicant in the circumstances. Dr Sharma described it in terms of being a “roadblock as there was no determination of the Applicant’s mental health.” This was by reason of the Applicant’s failure to undergo an examination and furnish a report as directed by the Respondent, as previously outlined.
CONCLUSION AND DECISION
As noted earlier, the Tribunal accepts that the Respondent did have reason to believe that the Applicant had a condition. The condition may, if he were issued Class 1 and Class 2 medical certificates endanger the safety of air navigation such that it was entitled under Regulation 67.165 to direct the Applicant to submit to an examination carried out by a psychiatrist.
The Applicant did not submit to an examination carried out by a psychiatrist. Having not submitted to an examination the Respondent could not issue the medical certificates under Regulation 67.180.
Therefore, the Tribunal affirms the decision under review.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member and Dr. S. Lewinsky, Member.

[sgd]........................................................................
Associate
Dated: 2 August 2019

Date of hearing: 28 May 2019

Applicant: In person

Advocate for the Respondent: Mr Greg Williams

[2019] AATA 2367

2 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Remedies

Date of hearing:	28 May 2019
Applicant:	In person
Advocate for the Respondent:	Mr Greg Williams