Walker and Civil Aviation Safety Authority
[2009] AATA 674
•7 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 674
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0303
GENERAL ADMINISTRATIVE DIVISION ) Re JONATHAN WALKER Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Air Vice Marshal F. Cox AO (RET’D), MemberDate7 September 2009
PlaceCanberra
Decision 1. The decision of the Civil Aviation Safety Authority made 12 January 2009 refusing to issue Jonathan Walker with a class 1 and 2 medical certificate is set aside.
2. The matter is remitted to the Authority for reconsideration in accordance with the directions set out in the following 2 paragraphs.
3. The Authority shall issue to the Applicant Jonathan Walker a class 2 medical certificate forthwith upon Jonathan Walker providing to the Authority a certificate issued by a qualified medical practitioner that:
3.1 Jonathan Walker has undergone a second sleep deprived EEG on terms as supervised or as directed by Professor S.F. Berkovic or Professor T. O’Brien; and
3.2 the results of the EEG are that Jonathan Walker showed no significant epileptiform discharges on medication.
4. The class 2 medical certificate shall be issued with the condition that Jonathan Walker continue to take such a dose of anti-epileptic medication as is prescribed by a qualified medical practitioner in consultation with a qualified neurologist.
................[sgd].........................
J.W. Constance, Senior Member
CATCHWORDS
CIVIL AVIATION – safety of air navigation – criteria for medical standards 1 and 2 – juvenile myoclonic epilepsy – applicant does not meet criteria for medical standards 1 or 2 – likelihood of development of seizures – decision under review set aside and remitted with directions – applicant to receive class 2 medical certificate subject to conditions
Civil Aviation Act 1988 (Cth) – Sections 3, 9A, 20AB
Civil Aviation Safety Regulations 1998 – Regulations 67.015, 67.175, 67.180, 67.195, Table 67.155
Re Window and Civil Aviation Safety Authority (1999) 56 ALD 316
Re Hall and Civil Aviation Safety Authority [2004] AATA 21
REASONS FOR DECISION
7 September 2009 J.W. Constance, Senior Member
Air Vice Marshal F. Cox AO (RET’D), MemberINTRODUCTION
1. Since early 2005 Mr Walker has been enrolled in a Commercial Pilot Licence course. Prior to commencing this course he was issued with a medical certificate by the Authority, which is a prerequisite for anyone wishing to operate an aircraft under the VH system supervised by the Authority.
2. In 2006 Mr Walker was diagnosed as suffering juvenile myoclonic epilepsy. When Mr Walker advised the Authority of this diagnosis the Authority cancelled the medical certificate it had issued and refused to issue Mr Walker with a new certificate. Mr Walker is seeking a review of this decision.
3. For the reasons which follow we have decided that subject to Mr Walker meeting certain conditions he should be issued with a class 2 medical certificate.
FINDINGS OF FACT
4. Unless stated otherwise the following findings of fact are based on the evidence of Mr Walker. We are satisfied of the facts found on the balance of probabilities.
5. The Authority argued that Mr Walker should not be regarded as a credible witness as he failed to fully disclose the details of an incident in 2004 when he may have suffered some form of seizure. However, having observed Mr Walker give evidence, we accept him as an honest witness. We have taken into account that it is unlikely that the event was a seizure, that Mr Walker did not believe that he had suffered a seizure, and that it was Mr Walker who reported his tremors to the medical officer who issued his first medical certificate. We shall deal with this incident in more detail later in these reasons.
6. Mr Walker was born on 8 April 1982 and is now 27 years old.
7. In 2004 Mr Walker undertook full-time study for his senior certificate as an adult student. At the same time he was employed on a casual basis by the Royal Automobile Club of Queensland as a roadside mechanic. This required him to be on call for two concurrent 24 hour shifts over the weekend. He worked these shifts every weekend.
8. In early 2004 Mr Walker began to experience tremors in his hands for about an hour after waking in the morning. He describes these tremors as “short lived and never resulted in any loss of control.”[1] The tremors were always preceded by a night during which he had less than normal sleep and had consumed an excessive amount of alcohol. He did not experience the symptoms if he had a normal night’s rest.
[1] Ex. A9 para. 3.
9. In mid-2004 Mr Walker suffered an incident at a nightclub during which he lost consciousness or fell asleep for a period following a bout of heavy drinking, a lack of food and only sporadic sleep in the preceding 24 hours. He recalls waiting to use a urinal and then being woken by a security guard as he lay on the floor. He suffered a graze to his head, apparently during this episode, although he does not know how this happened. He was taken to hospital and admitted for a few hours. He was told by hospital staff that the incident was associated with excessive consumption of alcohol, which was in accordance with his belief at the time. There was no diagnosis of any form of seizure. On the basis of the evidence of Mr Walker and of Professor O’Brien, to which we shall refer later, we are satisfied on the balance of probabilities that Mr Walker did not suffer an epileptic seizure on this occasion.
10. In February 2005 Mr Walker undertook the Authority’s class 1 medical examination and was issued with a class 1 medical certificate. The class 1 medical certificate is the highest level of medical certification issued by the Authority.
11. A class 1 medical certificate is the class of certificate necessary for a person to be issued with a commercial pilot’s licence, which permits the holder to operate an aircraft carrying fare-paying passengers. Subject to meeting all other requirements, a pilot with a class 2 certificate can operate an aircraft carrying passengers provided those passengers are not being carried for reward. The medical requirements for both certificates are similar, but the testing for the class 1 certificate is more stringent.[2]
[2] Evidence of Dr Fitzgerald, transcript of 10.6.09 at pp. 97-98.
12. In March 2005 Mr Walker enrolled in a Commercial Pilot Licence course and commenced flying lessons. He has passed a number of examinations since and is continuing with that course.
13. Mr Walker passed a General Flying Proficiency Test in July 2005. This allowed him to fly solo an aircraft carrying passengers in his local area.
14. On 5 August 2005 the Authority issued Mr Walker with a Student Pilot Licence. In February 2006 his class 1 medical certificate was renewed.
15. In July 2006 Mr Walker decided to consult Dr Sharma concerning the tremors in his hands, which he was continuing to experience. Dr Sharma was the Designated Aviation Medical Examiner who authorised the issue of his original class 1 medical certificate. Dr Sharma referred Mr Walker to Dr Limberg, Neurologist, who diagnosed his suffering juvenile myoclonic epilepsy. This diagnosis was confirmed by Dr Cameron, Neurologist. Mr Walker notified the Authority of the diagnosis.
16. In September 2006 Mr Walker passed the test for a Private Pilot Licence. However, by letter of 7 November 2006 the Authority advised him that he failed to meet the requirements for the issue of either a class 1 or class 2 medical certificate. Without one or other of these certificates Mr Walker cannot operate an aircraft under the VH system which is supervised by the Authority.
MEDICAL EVIDENCE
Dr Limberg, Neurologist
17. In the opinion of Dr Limberg the myoclonic jerks suffered by Mr Walker can be provoked by sleep deprivation and alcohol, but can occur outside these settings. The condition frequently becomes apparent in the late teen years and early twenties. It is lifelong and persisting. Dr Limberg concluded:
… if he remains on his medication [Epilim] he has the best chance of remaining seizure free throughout his life, but it is impossible of course to say he will never have another seizure again, and certainly he would unfortunately be at increased risk for this… it seems that since he has been on the tablets, the myoclonic jerks have settled and he still has not had a generalised fit.[3]
[3] Ex. R9.
Dr Cameron, Consultant Neurologist
18. At Mr Walker's request Dr Limberg referred him to Dr Cameron for a second specialist opinion. In addition to his specialist qualifications Dr Cameron holds a Diploma in Aviation Medicine. He has been involved in the assessment of pilots for medical certification for more than 15 years.
19. In his report of 10 August 2006[4] Dr Cameron agreed with Dr Limberg’s diagnosis and stated:
Unfortunately he is medically unfit to hold a flying licence with this condition. The disturbance never settles and he may need to be on medication for the rest of his life. Also even avoiding alcohol and late nights does not prevent further seizure activity such as absences and generalised convulsions.
[4] Ex. R2.
20. Dr Cameron was asked to consider the reports of Professor O’Brien to which we shall refer later in these reasons. He did not agree with Professor O’Brien’s views as to the risk involved should Mr Walker operate an aircraft. On 20 April 2009 Dr Cameron reported:
Two types of seizure activity, absences and generalised tonic-clonic seizures are frequently seen in JME [Juvenile Myoclonic Epilepsy]. Myoclonic and seizure activity are commonly seen following alcohol excess the night prior or following a late night… A diagnosis of Juvenile Myoclonic Epilepsy is regarded as an exclusion to holding a flying licence throughout the world because of the high incidence of generalised tonic clonic seizures and absence seizures in this condition… A small group of JME sufferers may experience only myoclonic jerk activity throughout their lives… The concern in Jonathan Walker's case is not the myoclonic activity which would cause really little, if any problem in flying operations but the risk he has in developing partial and generalised seizures in the future.[5]
[5] Ex. R4.
21. When he gave evidence Dr Cameron confirmed the opinions he expressed in his reports. He said that studies indicate that up to 90% of juvenile myoclonic epilepsy sufferers will suffer a generalised seizure at some stage and approximately 30% will suffer an absence seizure. He described the symptoms of a tonic clonic seizure as falling to the ground, rigidity followed by jerking seizure activity and loss of conscious. An absence seizure involves a person being absent to what is happening for a brief period but without other manifestations. In his view Mr Walker is at significant risk of developing seizure activity of both types and that even on medication there is a 1 in 10 chance of his suffering a seizure.
22. Dr Cameron was of the opinion that it is “highly probable” that the event in the nightclub, when Mr Walker felt he had “blacked out”, was a seizure as it was associated with alcohol, sleep deprivation and of “fairly dramatic onset”.[6]
[6] Transcript of 9.6.09 at p. 54.
Professor Berkovic, Neurologist and Epileptologist
23. Professor Berkovic assessed Mr Walker on referral by Dr Cameron. In his opinion the diagnosis of juvenile myoclonic epilepsy is definite, although on the very mild end of the disorder. On 6 March 2007 he reported:
In this man’s case a low dose of Epilim is likely to effectively suppress his myoclonic seizures and probably his epileptiform discharges and would make the chance of a seizure extremely low… Given the very mild nature of his condition, the lack of any tonic-clonic seizures and the fact that his symptoms are totally suppressed on a low dose of medication, my clinical opinion is that his risk of a major seizure would be of the order of that of the general population. He is not at significant increased risk of a seizure, providing he remains on medication and the lifestyle rules are obeyed.[7]
[7] Ex. A1.
24. Professor Berkovic reviewed Mr Walker in January 2009. On 27 January 2009 he reported:
Jonathan has been off medication since early 2008, and has had no myoclonic jerks despite doing shift work for RACQ. … Although juvenile myoclonic epilepsy has been said to be a life-long condition, recent evidence suggests that this is not always so (see Baykan et al Myoclonic seizures subside in the the [sic] fourth decade in juvenile myoclonic epilepsy. Neurology. 2008;70: 2123-9) and as I previously stated, he is clearly on the very mild end of the spectrum of this disorder, never having had a tonic-clonic seizure despite having sleep deprivation etc.
I remain of the view that following a sleep deprived EEG (probably on medication) he should be considered for a private pilot’s licence providing he remains on medication, is under yearly review and obeys the appropriate lifestyle rules associated with this disorder.[8]
[8] Ex. A4.
25. Professor Berkovic gave evidence. He confirmed the opinions expressed in his reports. He said that with a low dose of anti-epileptic drug (usually Epilim) and avoiding missing sleep and avoiding excessive consumption of alcohol, control of the condition is usually excellent. Further, he said that the yearly review he suggested for Mr Walker would be a review by a neurologist to ensure that there had been no change in his clinical state.
26. On the question of the likelihood of Mr Walker suffering an absence seizure, Professor Berkovic was of the view that this was unlikely as normally such events occur early in the course of the disorder. In his opinion, although the condition is genetic, in Mr Walker's case onset of the condition should be taken to have occurred at around 21-22 years of age. On this basis he regarded that the likelihood of Mr Walker having absence events now “is really very low.”[9]
[9] Transcript of 10.6.09 at p. 119.
27. In cross-examination Professor Berkovic agreed with Counsel for the Authority that on the basis that any minor risk is unacceptable, Mr Walker would still be at a slightly higher risk of a generalised seizure or an absence seizure than the general public.
Professor O’Brien, Neurologist
28. Professor O’Brien is the Head of the Epilepsy Program at The Royal Melbourne Hospital. He has particular research and clinical expertise in epilepsy and anti-epileptic drugs.
29. Mr Walker consulted Professor O’Brien in May 2008 to obtain a further opinion as to his condition. To confirm Mr Walker does suffer juvenile myoclonic epilepsy, he was admitted as an inpatient at the Royal Melbourne Hospital for inpatient video-EEG monitoring. This admission was from 7 to 11 July 2008. His medication was withdrawn for 6 weeks prior to the admission and he was sleep deprived during the monitoring period.
30. On 10 July 2008 Professor O’Brien reported:
The conclusion of the monitoring period was that Jonathan does in fact have a mild form of juvenile myoclonic epilepsy. As noted by Prof Sam Berkovic however on his low dose of Epilim 200 mg bd he is completely free of myoclonic seizures. He has never had a convulsive seizure and therefore his risk of having a seizure while flying is extremely low. I would agree with Prof Berkovic that it is probably not greater than the general population. I did advise him to go back on his Epilim …[10]
[10] Ex. A2.
31. When he gave evidence Professor O’Brien said that the removal of the medication and the sleep deprivation were designed to bring out as much of the epileptic tendency as possible.
32. Professor O’Brien addressed the question of the likelihood that Mr Walker will have a convulsive seizure at some time. In his view the chance of this is low as “most patients who do have convulsive seizure with juvenile myoclonic epilepsy do so in their teens or early twenties.”[11] He went on to say that patients who do have seizures are extremely responsive to Epilim. He was of the view that:
… myoclonus is a very good indicator of how well controlled the condition is, and the likelihood of having a generalised clonic seizure. On very low dose Epilim, John had absolutely and utterly no myoclonus. That, given with the fact that he has never had a generalised convulsion, in my opinion, makes the chance that he would, while taking Epilim, ever have a generalised convulsive seizure, extremely low and remote …[12]
[11] Transcript of 10.6.09 at p. 81.
[12] Transcript of 10.6.09 at p. 81.
Further, it is the opinion of Professor O’Brien the development of absence seizures after the early twenties is “incredibly uncommon” and that it would be “incredibly unlikely” that Mr Walker will develop absence seizures.[13]
[13] Transcript of 10.6.09 at p. 87.
33. Professor O’Brien was very firm in his view that Mr Walker needs to have drug treatment to avoid seizures. However, as juvenile myoclonic epilepsy is not a progressive disease, medication which controls the condition when the patient is young will continue to do so.
34. In relation to the incident in 2004 when Mr Walker was awoken on the floor of the nightclub, Professor O’Brien said that a generalised convulsive seizure is a “really dramatic event”[14] involving the person suddenly falling to the ground, becoming rigid, changing colour and losing consciousness for 15 to 30 minutes. In the Professor’s view it is not something likely to be confused with a person falling asleep, although he could not rule out absolutely the possibility of the event having been a seizure. We are satisfied on the balance of probabilities that Mr Walker did not suffer a seizure on this occasion. It is extremely unlikely that he would have suffered an event such as described by Professor O’Brien without it being reported, particularly as there were other patrons of the nightclub in the immediate vicinity. We accept the evidence of Mr Walker that he was awoken by a security guard and told he could not sleep where he was.
[14] Transcript of 10.6.09 at p. 83.
Dr Fitzgerald, Medical Officer, Civil Aviation Safety Authority
35. Dr Fitzgerald, who is the maker of the decision under review,[15] gave evidence. He holds a commercial pilot’s licence. His evidence has been taken into account on the basis that he is a medical expert with knowledge of the aviation industry. His decision has been considered in so far as it contains expressions of his opinion and evidence as to factual matters.
[15] Ex. R5.
36. In the opinion of Dr Fitzgerald the condition of juvenile myoclonic epilepsy “carries with it an increased risk of generalised epileptic seizures, which, if they would occur in the confined space of an aircraft cockpit, would cause interference to aircraft controls such that a [sic] there would be a significant risk of loss of control of the aircraft.”[16] Further, he is of the view that an absence seizure could go undetected and also risk a loss of control of the aircraft. He referred to articles by Wheless and Kim[17] and Alfradique and Vasconcelos,[18] which he said referred to studies indicating that of the sufferers of juvenile myoclonic epilepsy whose conditions were initially characterised by early morning myoclonus, around 90% experienced generalised tonic clonic seizures and around 30% experienced absence seizures.
[16] Ex. R5.
[17] Ex. R6.
[18] Ex. R7.
37. In relation to the effectiveness of medication in controlling the symptoms of juvenile myoclonic epilepsy, Dr Fitzgerald said that even with medication there was still the risk of break-through seizures and the risk of non-compliance with medication remained.
LEGISLATION
38. Subsection 20AB(1) of the Civil Aviation Act 1988 (Cth) provides that a person must not perform any duty that is essential to the operation of an Australian aircraft during flight times if the person does not hold a current civil aviation authorisation that authorises the performance of that duty. Under subsection 3(1) of the Act “civil aviation authorisation” includes a medical certificate issued pursuant to the Civil Aviation Safety Regulations 1998.
39. Regulation 67.175 provides that a person may apply to the Authority for the issue of a medical certificate. Regulation 67.180 relevantly provides:
(1)Subject to this regulation, on receiving an application under regulation 67.175, CASA must issue a medical certificate to the applicant only if:
(a) the applicant meets the requirements of subregulation (2);
…
(2) For paragraph (1)(a), the requirements are:
…
(e) either:
(i) the applicant 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;
…
40. The criteria for medical standard 2 (the relevant standard for a class 2 medical certificate[19]) is set out in Table 67.155 of the Regulations. Criterion 2.7 requires the applicant to have no established clinical diagnosis of epilepsy.
[19] Reg 67.010(1).
41. Regulation 67.195(1) provides:
CASA may 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.
42. Subsection 9A(1) of the Act provides:
In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
43. Regulation 67.015 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 to perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.
ISSUES FOR DETERMINATION
44.The following issues arise for determination.
1)Does Mr Walker meet the criteria for medical standard 1 and/or medical standard 2?
2)If not, is the extent to which Mr Walker does not meet the medical standard(s) likely to endanger the safety of air navigation?
DETERMINATION OF THE ISSUES
Does Mr Walker meet the criteria for medical standard 1 and/or medical standard 2?
45. There is no dispute that Mr Walker has an established medical history and a clinical diagnosis of juvenile myoclonic epilepsy. Counsel for Mr Walker argued that it was not intended that the Regulations would include juvenile myoclonic epilepsy within the meaning of “epilepsy” and that epilepsy is restricted to a condition which includes the experiencing of seizures. We cannot see any justification for this interpretation. On the evidence before us the tables which set out the criteria for the relevant medical standards include all forms of epilepsy, including juvenile myoclonic epilepsy.
46. As unfortunately for Mr Walker he has both an established medical history and clinical diagnosis of epilepsy, he does not meet the criteria for either medical standard 1 or medical standard 2.
Is the extent to which Mr Walker does not meet the medical standard(s) likely to endanger the safety of air navigation?
47. For the purposes of this application, the extent to which Mr Walker does not meet either medical standard 1 or 2 is that he suffers from juvenile myoclonic epilepsy which has manifested itself in myoclonic jerks experienced on waking. These jerks have been limited to tremors in the hands and he has not suffered any generalised tonic clonic or absence seizures.
48. In the context of the regulations “likely” has been interpreted to mean “a substantial or real, and not a remote, chance”: Re Window and Civil Aviation Safety Authority (1999) 56 ALD 316. We agree with this interpretation.
49. We agree also with the following statement of the Tribunal in Re Hall and Civil Aviation Safety Authority [2004] AATA 21 at para. 45:
As the Tribunal stated in Re Windows [sic] … 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 Authority’s argument
50. It was put on behalf of the Authority that the condition of juvenile myoclonic epilepsy puts Mr Walker at significant risk of developing generalised tonic clonic seizures and absence seizures. It was submitted that the medical evidence establishes the following facts.
a) Most patients who suffer JME will suffer not only myoclonic jerks, but other seizure type activity, including GCTS [sic] and AS during their lives. This was the evidence of Dr Cameron in his report of 20 April 2009.
b) Dr Cameron’s evidence in this regard is supported on an independent basis by the research paper which he attached to his report of 20 April [Ex. R4]. That report showed that in excess of 80% of the JME sufferers who were followed for the purposes of the report (for a period of 20 years) also exhibited GTCS and/or AS activity.
c) Similarly, in Adolescent Seizures and Epilepsy Syndromes [Ex. R6], the authors note that greater than 90% of those with JME go on to suffer from GTCS and 30% have AS.
d) In Juvenile Myoclonic Epilepsy [Ex. R7], the authors state that GCTS [sic] are present in 80-97% of patients with a diagnosis of JME whilst AS being present in 12-54% of patients.[20]
[20] Respondent’s Outline of Submissions.
51. On the question of the effectiveness of anti-epileptic drugs the Authority again relied on the evidence of Dr Cameron that these drugs were insufficient to adequately reduce the risk of Mr Walker's suffering a seizure whilst operating an aircraft. It was argued that even if he takes the appropriate medication, his risk of suffering a seizure will still be significantly higher than that which exists in the general population.
Reasoning
52. Whilst it may be that Mr Walker has a greater risk of suffering a seizure than the general population, this of itself does not mean that he is not entitled to the issue of an appropriate medical certificate. There will always be some risk. We have to be satisfied that Mr Walker's having the condition of juvenile myoclonic epilepsy is “not likely to endanger the safety of air navigation”.[21]In reaching our conclusion we must take into account the requirements of the Regulations to which we have already referred, and have regard to the most important consideration being the safety of air navigation.
[21] Reg. 67.180 (2)(e)(ii).
53. It is necessary to consider the expert opinions and evidence carefully as we have been presented with opposing views by highly qualified and experienced medical practitioners. Although all agree that juvenile myoclonic epilepsy is likely to be an ongoing condition, there is disagreement as to the likelihood of the development of seizures. It is the risk of seizures, rather than the effect of the symptoms suffered by Mr Walker so far, which is the basis of the Authority’s objection to the issue of a medical certificate.
54. Dr Cameron is of the opinion that Mr Walker is not medically fit to fly an aircraft as he is at high risk of developing seizure activity. In forming this view he has placed considerable reliance on the research presented in an article by Padma and Maheshwari published in 1997.[22] In his report of 20 April 2009 Dr Cameron referred to the research which showed that of a group of 50 who started with simply myoclonic jerks, 68% suffered a generalised tonic clonic seizure within 10 years of the onset of myoclonus and 78% within 20 years. However, Dr Cameron did not refer to the fact that of those in the group who had developed seizures, 78% did so within 5 years of the onset of myoclonus. It is now 5 years since Mr Walker first experienced myoclonus and there is no reliable evidence that he has suffered a seizure of either type in that period.
[22] A copy of this article forms part of ex. R4.
55. We take into account also that in discussion of the research (and in particular the number of people who experienced a delay in the onset of seizures) the authors stated:
… the early recognition of the syndrome and initiation of appropriate treatment can modify the clinical picture in subsequent years. Once individuals presenting with only myoclonic jerks are treated with appropriate drugs they may never have any other seizure type. All the 9 probands with only myoclonic jerks and diagnosed as JME were treated with sodium valproate…
It is possible that individuals presenting with only early morning myoclonic jerks may be representing a “benign” type of JME. There is no way at present to know if these individuals would go on to have GTCS or other seizure types when they are treated with sodium valproate or other drugs, in view of their typical early morning myoclonic jerks precipitated by sleep deprivation and abnormal EEGs.[23]
[23] At p. 266 of article in Ex. R4.
56. The opinion of Dr Cameron is supported by Dr Fitzgerald.
57. Contrary to the view of Dr Cameron, Professor Berkovic is of the opinion that Mr Walker is not of significant risk of suffering seizures if he remains on medication and obeys the rules as to his lifestyle. This opinion is shared by Professor O’Brien who arranged for the video-EEG monitoring of Mr Walker.
58. Having considered the various reports and having heard the practitioners give evidence, we prefer the views of Professor Berkovic and Professor O’Brien. Both of these witnesses have particular expertise in the treatment of epilepsy in addition to their other specialist qualifications. Their reasoning in forming their respective opinions was based on a careful assessment of Mr Walker's particular situation and their experience in the management of juvenile myoclonic epilepsy.
59. For the same reasons as we have already stated we prefer the opinion of Professor O’Brien to that of Dr Cameron as to the likelihood that Mr Walker suffered a form of convulsive seizure in mid-2004. We have taken into account that the event as described by Mr Walker is not consistent with either form of seizure as described by Professor O’Brien or Dr Cameron.
60. We have found the view of Dr Cameron less persuasive than those of Professor Berkovic and Professor O’Brien. Dr Cameron has a stated view that “a diagnosis of Juvenile Myoclonic Epilepsy is regarded as an exclusion to holding a flying licence throughout the world …”,[24] and appears to have based his assessment of Mr Walker’s condition on this premise. Without considering the legislation of all other countries, the Australian legislation makes it clear that a diagnosis of juvenile myoclonic epilepsy does not of itself mean that a person cannot hold a flying licence.
[24] Ex. R4.
61. Dr Cameron has referred to the research reported by Padma and Maheshwari. However, it appears to us that that research does not support a conclusion that Mr Walker does not meet the requirements for the issue of a certificate in accordance with the Act and Regulations. Further, Dr Cameron appears to have placed little, if any, weight on the comments by the authors as to the possible effect of anti-epileptic medication.
62. We prefer the opinions of Professor Berkovic and Professor O’Brien to that of Dr Fitzgerald by reason of their more specialised qualifications and experience in the treatment of epilepsy. Dr Fitzgerald does not appear to have given the detailed attention to the individual circumstances of Mr Walker as has been given by Professor Berkovic and Professor O’Brien.
63. On the basis of the evidence of Professor Berkovic and Professor O’Brien, we are satisfied that to minimise the risk of having a seizure whilst operating an aircraft Mr Walker should be required to take the appropriate dose of Epilim as a condition of the issue of any medical certificate issued to him. We appreciate that Mr Walker would prefer not to take medication and of course ultimately it is his choice whether he does so or not. However, in our view it is proper that Mr Walker be required to forego this choice if he wishes to have the benefit of the certificate he seeks. As indicated by Professor Berkovic the actual dosage will need to be determined by consultation with a neurologist.
64. We consider also that it should be a condition of the issue of a certificate that Mr Walker have undergone a further sleep deprived EEG under such conditions as are recommended by Professor Berkovic. This will provide a basis for review of Mr Walker's condition when and if this becomes necessary.
65. We do not consider it appropriate to include any conditions in the certificate relating to the consumption of alcohol before operating an aircraft. Matters such as this have to be taken into account by all responsible pilots and we are satisfied that Mr Walker will observe the advice he has been given as to the various factors which can effect the symptoms of his medical condition.
66. The decision under review is a refusal to issue Mr Walker with either a class 1 or a class 2 certificate. Counsel for Mr Walker urged us to determine that the Authority should issue Mr Walker with both certificates. We do not consider that this would be the correct decision. The issue of a class 2 certificate to Mr Walker will enable him to complete his training for his commercial licence. If he completes this training successfully and wishes to obtain his commercial licence he will need to obtain also a class 1 medical certificate. In our view it is not appropriate that the Tribunal should make a decision now which in part at least would govern the conditions on which a medical certificate could be issued in the future.
67.For the reasons given the decision under review will be set aside.
DECISION
68. The decision of the Civil Aviation Safety Authority made 12 January 2009 refusing to issue Jonathan Walker with a class 1 and 2 medical certificate is set aside.
69. The matter is remitted to the Authority for reconsideration in accordance with the directions set out in the following 2 paragraphs.
70. The Authority shall issue to the Applicant Jonathan Walker a class 2 medical certificate forthwith upon Jonathan Walker providing to the Authority a certificate issued by a qualified medical practitioner that:
70.1Jonathan Walker has undergone a second sleep deprived EEG on terms as supervised or as directed by Professor S.F. Berkovic or Professor T. O’Brien; and
70.2the results of the EEG are that Jonathan Walker showed no significant epileptiform discharges on medication.
71. The class 2 medical certificate shall be issued with the condition that Jonathan Walker continue to take such a dose of anti-epileptic medication as is prescribed by a qualified medical practitioner in consultation with a qualified neurologist.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member, and Air Vice Marshal F. Cox AO (RET’D), Member.
Signed: ...................[sgd].............................................................
T. Aviram, AssociateDates of Hearing 9-10 June 2009
Date of Decision 7 September 2009
Counsel for the Applicant Mr C. McKeown
Counsel for the Respondent Mr J. Rule, Civil Aviation Safety Authority