White and Civil Aviation Safety Authority
[2008] AATA 543
•27 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 543
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/1230
GENERAL ADMINISTRATIVE DIVISION )
ReJoseph WHITE
Applicant
And Civil Aviation Safety Authority
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President, and Dr MEC Thorpe, Member
Date27 June 2008
PlaceSydney
DecisionThe decision under review is affirmed.
.................[sgd].............................
Professor GD Walker
Deputy President
CATCHWORDS – whether applicant meets the medical standard for the issue of a class 2 medical certificate – if applicant does not meet the medical standard, whether the extent to which the applicant fails to meet that standard is likely to endanger the safety of air navigation – whether any conditions could be imposed upon a medical certificate that would ameliorate the threat posed to air safety by the applicant’s failure to meet the class 2 medical standard – appropriate diagnosis for applicant is a disturbance of consciousness for which there is no satisfactory medical explanation – found to be a real risk to the safety or air navigation – no conditions could be imposed to ameliorate risk – decision under review affirmed.
…
RELEVANT ACT/S:
Civil Aviation Act 1988 (the Act): 3, 9A, 20AB, 31
Administrative Appeals Tribunal Act 1975 (the AAT Act): 25, 37
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CITATIONS
Re Window and Civil Aviation Safety Authority (1999) 56 ALD 316
Re Commins and Civil Aviation Safety Authority [2004] AATA 1330
Re Hall and Civil Aviation Safety Authority [2004] AATA 21
Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952
…
AUTHORITIES
Civil Aviation Regulations 1988 (CAR): 5.04
Civil Aviation Safety Regulations 1998 (CASR): Part 67, Table 67, .155, .180, .195
…
OTHER REFERENCES
Gordon E & Devinsky O, Alcohol and Marijuana: Effects on Epilepsy and Use by Patients with Epilepsy" in Epilepsia (2001) Vol 42, No 10 p 1266-1272.
Zagnon P and Albano C, Psychostimulants and Epilepsy"in Epilepsia (2002) Vol 43, SUP 2 p 28-31.
REASONS FOR DECISION
27 June 2008
Professor GD Walker, Deputy President, and
Dr MEC Thorpe, Member
Basic facts
1. The applicant Mr Joseph White was born in 1975 and is currently aged 32. On 12 September 2006, he was examined by a designated aviation medical examiner (DAME) for the purposes of his application to the respondent for a class 2 medical certificate. On 20 October 2006, the applicant was issued with a student pilot (aeroplane) license.
2. The following month he began flight training at Sydney Aerobatics School (also known as Red Baron Flight Training (Exhibit A2). As the name implies, the course has a special emphasis on developing student skills in aerobatic manoeuvres.
3. The applicant has accrued over 50 hours of dual flying in the school’s ab initio course. He has not yet flown solo.
4. On 15 February 2007, on the basis of the outcome of the DAME examination and further specialist medical evidence, a delegate of the respondent made the reviewable decision refusing the applicant a class 2 medical certificate (T pp31-32).
5. The applicant sought review of that decision in March 2007 (T p33), and the respondent affirmed the reviewable decision on 7 March 2007 (T p34). On 3 April 2007, the applicant applied to this tribunal for review of the reviewable decision (T pp1-2).
6. At the hearing, the applicant was represented Dr Christopher Ward of counsel, while Mr Joe Rule of CASA Legal Services Group appeared for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person.
Issues
7. The issues for determination in this application are:
(a)Whether the applicant meets the medical standard for the issue of a class 2 medical certificate;
(b)If not, whether the extent to which the applicant fails to meet that standard is likely to endanger the safety of air navigation; and
(c)If so, whether any conditions could be imposed upon a medical certificate that would ameliorate the threat posed to air safety by the applicant’s failure to meet the class 2 medical standard.
Applicable law
8. Subregulation 5.04(1) of the Civil Aviation Regulations 1988 (CAR) provides that the holder of a flight crew licence must not perform a duty authorised by that licence if the person does not hold a current medical certificate that is appropriate to the licence.
9. Subregulation 5.04(3) of the CAR provides that, in relation to a student pilot licence, the appropriate medical certificate is a class 1 or class 2 medical certificate.
10. Subsection 20AB(1) of the Civil Aviation Act 1988 (the Act) 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.
11. Relevantly and for present purposes, regulation 5.66(1) of the CAR authorises the holder of a student pilot license to fly a flying training aircraft as pilot in command. That authorises the student pilot to undertake solo flight in accordance with an authorisation from an authorised flight instructor (regulation 5.66(2)). The effect of the decision under review is therefore to prevent the applicant from flying as pilot in command and, therefore, from undertaking solo flight under the authority of his student pilot license.
12. By ss 3(1) of the Act, the term “civil aviation authorisation” is defined to include, inter alia, a certificate issued under the CAR and/or Civil Aviation Safety Regulations 1998 (CASR) (collectively, the regulations).
13. The issuing of medical certificates is governed by Part 67 of the CASR. Regulation 67.180 provides for the issuing of medical certificates. Regulation 67.195 allows the respondent to issue a medical certificate to a person “subject to any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person”.
14. Regulation 67.180 prevents the respondent from issuing a medical certificate unless the applicant meets the “relevant medical standard”, or unless the extent to which the applicant does not meet that standard is not likely to endanger the safety of air navigation.
15. In some circumstances it is by using regulation 67.195, to impose conditions upon a medical certificate, that the respondent can be satisfied that the extent to which a person fails to meet the applicable medical standard is not likely to endanger the safety of air navigation.
16. The class 2 medical standard is set out in table 67.155 of the CASR, and, as far as is relevant, provides as follows:
…
Abnormalities, disabilities and functional capacity
2.1Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a)an abnormality;
(b)a disability or disease (active or latent);
(c)an injury;
(d)a sequela of an accident or a surgical operation
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Mental Fitness
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2.5Does not engage in any problematic use of substances (within the meaning given by section 1.1 of Annex 1, Personnel Licensing, to the Chicago Convention).
2.6If there is any personal history of problematic use of a substance (within the meaning given by section 1.1 of Annex 1, Personnel Licensing, to the Chicago Convention):
(a)the person’s abstinence from problematic use of the substance is certified by an appropriate specialist medical practitioner; and
(b)the person is not suffering from any safety-relevant sequelae resulting from the person’s use of the substance; and
(c)the person provides evidence that the person is undertaking, or has successfully completed, an appropriate course of therapy
Note: In Annex 1, Personnel Licensing, to the Chicago Convention, “Problematic use of substances” is defined as follows:
The use of one or more psychoactive substances by aviation personnel in a way that:
(a) constitutes a direct hazard to the user or endangers the lives, health or welfare of others; and/or
(b) causes or worsens an occupational, social, mental or physical problem or disorder.
“Psychoactive substances” is there defined as “Alcohol, opioids, cannabinoids, sedatives and hypnotics, cocaine, other psychostimulants, hallucinogens, and volatile solvents, whereas coffee and tobacco are excluded”.
Nervous system
2.7Has no established medical history or clinical diagnosis of:
(a)a safety-relevant disease of the nervous system; or
(b)epilepsy; or
(c)a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur
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17. By s 9A of the Act, the respondent is required to regard the safety of air navigation as the most important consideration in the exercise of its powers and the performance of its functions.
18. The term “likely”, when used in the context of the issue of aviation medical certificates pursuant to Part 67 of the CASR, should be understood as a reference to a substantial or real, and not remote, risk of a particular event occurring (Re Window and Civil Aviation Safety Authority (1999) 56 ALD 316).
19. Subsection 31(1)(b) of the Act provides that a reviewable decision includes inter alia a decision to impose a condition upon a certificate, permission, permit, or licence granted or issued under the Act or the regulations.
20. Subsection 31(2) of the Act provides that applications may be made to the tribunal for review of a reviewable decision.
21. On that basis, the tribunal has jurisdiction to review the reviewable decision pursuant to s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Applicant’s evidence
22. In his witness statement (Exhibit A1), which he adopted as his evidence in chief at the hearing, the applicant stated that in the course of his flying training, almost every flight he has made has included aerobatics exposing him to high positive G loadings and some negative G forces.
23. His first contact with marijuana was in Canberra when he was 18, when he was offered the drug by workmates on numerous occasions. When he moved to Brisbane in 1994, he was constantly being offered marijuana through contacts at work and in rugby league. He was told by a friend that marijuana was no more harmful than cigarettes, which he was already smoking. As his friend appeared very fit, he decided to try it and within a couple of months was regularly using it.
24. When he moved to Cootamundra in 2000, he worked at the abattoirs for a period, where the majority of workers also smoked marijuana regularly.
25. In December 2002, he bought some of the drug from a man in Canberra and went home to smoke it with his friends, who had their own supply. He recalled that it seemed more potent than usual but he continued smoking until about midnight.
26. The following morning he awoke feeling bright and fresh, but was perplexed to find that he was in a hospital bed in intensive care. He did not realise he had been there for three days. A nurse told him that he had been having grand mal seizures, possibly caused by the additives in hydroponic marijuana. Dr Gavaghan expressed a similar view.
27. On discharge he was prescribed Dilantin for a period of two or three weeks. He was now a non-smoker and did not use marijuana again for three years.
28. In 2005 he went to a party in Cootamundra and resumed smoking. He purchased more marijuana from his Canberra contact and took it back to Cootamundra in June 2005. The day after using it he awoke feeling lightheaded. He took a shower in an endeavour to wake himself, but after stepping out of the shower, he awoke on the sofa with his father and his girlfriend standing over him. His father had called an ambulance when he found the applicant lying on the bathroom floor. He was held overnight in hospital and released without treatment. Since June 2005, he has not touched a drug of any kind and has no intention of ever doing so again.
29. After describing the various medical examinations that he underwent, the applicant stated that in 2006 on legal advice he attended a drug rehabilitation service in order to obtain additional evidence of his drug-free status. All tests were clear. He requested a report and understands that a report will be provided to the effect that he does not require rehabilitation and is not a drug user. He expects the report will also deal with the risk of relapse, which he believes is guaranteed to be zero.
30. He had constantly informed the respondent that he was willing to be drug tested whenever they wished and as often as they wished and that he would permanently relinquish his license if he ever returned a positive result.
31. In cross-examination the applicant said he became a regular cannabis user three or four months after his initial use of the drug in 1994 or 1995 in a social context. He continued until 2002, increasing his intake to 20 or 30 “bongs” (or cigarettes) a day. He abjured it after the 2002 seizure on medical advice, but resumed in 2005 several months before the seizure, but not as heavily. He was smoking only about 10 marijuana cigarettes per day. He smoked heavily on the night of the attack, however, but did not partake of alcohol at the same time.
32. At the time he saw Professor Beran he was drinking about three or four cans of a rum beverage per day. Now he drinks only at weekends and at parties, but never to intoxication.
33. He has no memory of the three days he spent in hospital in 2002. He used the Dilantin that was prescribed, but did not obtain the repeat prescription after the screens had been performed.
34. When it was put to him that his account of the 2005 episode differed from that in Professor Beran’s report (T p27), he replied that Professor Beran had not mentioned that he had taken a shower, but the account was otherwise the same as his own.
Medical evidence
35. Dr Terry Gavaghan, consultant physician and gastroenterologist, was the attending physician in 2002 when Mr White was admitted to Calvary Hospital. Initially he considered Mr White to be suffering from idiopathic epilepsy, but then was of the opinion that it was obvious the seizure was associated with excessive marijuana intake. A CT scan of his brain was normal, an EEG was reported as normal and he referred him to Dr Roger Tuck. The lumbar puncture and blood tests were normal. Subsequent neurological examination was normal. When asked in evidence about the subsequent altered liver function tests, he suggested fatty liver as the cause. His evidence was that the combined effects of alcohol, sleep deprivation and marijuana could have been risk factors for the fits.
36. Dr Martin Jude, consultant physician, on 20 November 2006 assessed Mr White for seizure risk so that an appropriate assessment for flight certification could be undertaken. The history obtained was of a generalised seizure in 2002 at a time when he was smoking high amounts of marijuana hydroponically prepared. Mr White had no recall of the seizure other than going to bed and waking three days later in Calvary Hospital, Canberra. His flat-mates had noticed that he had wandered out of bed and they witnessed tonic-clonic seizures. Dr Jude regarded status epilepticus as one event in an epileptic history and not useful predicting future events. The MRI showed no structural abnormality and the EEG showed mild background slow wave discharges which were non-specific. No definite epileptiform activity was identified. He was discharged on phenytoin for one to two months.
37. The applicant was involved in a motor vehicle accident in 2003 in which he suffered major trauma to his thoracic and cervical vertebrae when a motor vehicle in which he was a passenger rolled over. There was no significant history of loss of consciousness or head injury.
38. Dr Jude noted the event in 2005, which he considered could have represented a seizure or maybe a syncopal attack. The 2002 event and the 2005 events both occurred while he was smoking large quantities of marijuana. In oral evidence Dr Jude said marijuana could in fact be protective for epilepsy and that there were no studies differentiating hydroponic marijuana as a greater risk.
39. At the time of his examination in November 2006, Dr Jude estimated a 5-10 percent seizure risk in the coming 5 years.
40. Professor Roy Beran, neurologist, accepted the history of status epilepticus in 2002 but said it was unclear if the episode in 2005 was or was not a seizure. Professor Beran's best history was that Mr White came out of the bedroom very groggy in the morning and it is unclear what happened during the night. There was no associated history of incontinence, tongue or gum biting in relation to the second episode and he can still recall the events although also recalled a feeling of vagueness. This may just have been due to the excessive amount of marijuana but it is unclear. Professor Beran reported a sleep deprived EEG as normal. He attributed altered liver function test to excessive consumption of Bundaberg rum.
41. Based on the information provided to him, Professor Beran opined the 2002 seizure was due to excessive use of marijuana, possibly tinged with alcohol at the time. He did not believe the second episode in 2005 could be classified as a seizure, although he could not be 100 percent certain.
42. Dr DYK Tan, a general practitioner with an interest in drugs and alcohol, was consulted by Mr White in December 2007 for advice concerning abstaining form marijuana. There were two subsequent negative urine drug screens. On further enquiry it emerged that Dr Tan is not a specialist in drugs and alcohol and Mr White has not been back for further consultation or entered into a rehabilitation program.
43. Dr David Fitzgerald, a senior medical officer with CASA, provided the tribunal with a number of publications from reputable journals dealing with psychostimulants and epilepsy, with particular reference to alcohol and marijuana. Quotes from several of the articles, as follow, seem to be a reasonable summary of the current thinking:
…
"Alcohol and Marijuana: Effects on Epilepsy and Use by Patients with Epilepsy", Elizabeth Gordon & Orrin Devinsky:
Individuals who chronically abuse alcohol are at a significantly increased risk of developing seizures which can occur during withdrawal or intoxication. Alcohol abuse predisposes to medical and metabolic disorders that can lower the seizure threshold or cause symptoms that mimic seizures.
Some evidence suggests that marijuana and its active cannabinoides have anti-epileptic effects, but these may be specific to partial or tonic clonic seizures ----- marijuana use or withdrawal could potentially trigger seizures in susceptible individuals
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"Psychostimulants and Epilepsy", Zagnoni and Albano:
Marijuana, at variance with other psychostimulants owing to its serotonin mediated anticonvulsant activity, could have a medical use for the treatment of epilepsy
…
Applicant’s submissions
44. Dr Ward opened the applicant’s case at some length. As his remarks canvassed substantial aspects of the applicant’s case, it is convenient and appropriate to summarise them.
45. Dr Ward said that it was common ground between the parties that in 2002 the applicant had suffered a seizure after indulging in marijuana smoking. He was hospitalised, treated and released and subsequently did not use marijuana for three years. At a party in 2005, however, he was offered marijuana, of which he partook. The following day he felt lightheaded while having a shower and lost consciousness, awakening on the floor of his apartment. Those two events are at the heart of the reviewable decision.
46. The applicant seeks a class 2 medical certificate for the purposes of private flying only. He undertook a medical test when he began flight training (T pp9-15) and answered the questionnaire truthfully (eg, T p13).
47. His drug screen results were negative (T p16). The respondent’s letter of 25 October 2006 (T p17) was the first response requiring a further examination, and was quite proper in the circumstances.
48. Then came the report of the DAME, Dr Jude, however. Although his findings were correct in relation to the two events in 2002 and 2005, he incorrectly stated in his conclusion that the applicant, with such a medical record, would be considered unfit for consideration for a commercial driver’s license until he could show a seizure-free period of five years (T pp18-19).
49. Further, there was no support for his final estimate of a five to ten percent seizure recurrence risk rate in the coming five years (T p20). He also repeated the incorrect observation about obtaining a commercial driver’s license (T p20).
50. The report of 13 December 2006 (T p22) sets out the reasons for rejection. The applicant’s 2002 seizure was described as an “epileptic fit” and the report repeats the risk estimate of five to ten percent in the coming five years.
51. The respondent’s show cause notice to the applicant dated 13 December 2006 (T p23) refers to the seizure in 2002 and the syncope and possible seizure in 2005 but says nothing about marijuana use.
52. In his response of 18 December 2006 (T p25) to the show cause notice, the applicant communicated his intention to obtain further medical reports on his condition. He duly consulted Professor Roy G Beran, who provided the report dated 23 January 2007 (T pp27-29). The report states that Professor Beran conducted a sleep-deprived EEG test and a drug screen, which was clear. He expressed the view that the 2005 event might not be a seizure and concluded in a reasoned fashion that the applicant’s risk of further seizures was no greater than exists in the general community.
53. The undated further CASA report (T p30) highlighted a two-year seizure-free period, showing a discrepancy between the opinions of the medical experts.
54. In its decision letter of 15 February 2007 (T pp31-32), the respondent for the first time opened a new field in relation to the applicant’s eligibility for a class 2 medical certificate under table 67.155, item 2.5 of the CASR, the problematic use of substances, namely cannabis and alcohol. That would not be a bar to the grant of a certificate, but it does require the applicant to negotiate the three extra hurdles set out in item 2.6 of the CASR. The decision indicated that the respondent would not consider reassessing the applicant until the year 2010, at which point they would expect him to be seizure-free.
55. The applicant requested a review of the decision (T p33), which was unsuccessful (T p34).
56. Thus, Dr Ward submitted, the applicant has suffered only one clear seizure, and no unexplained loss of consciousness. Professor Beran excludes any finding of epilepsy, as neither episode was unprovoked. There was no basis for a five-year bar, which in any event should run from 2002, not 2005. The applicant’s problematic use of marijuana could be met by compliance with item 2.6 of the CASR. He could produce the required evidence and would be willing to undergo ongoing random screening.
57. In his closing submissions Dr Ward pointed out that initially the respondent had not relied on the allegation of epilepsy, but instead on paragraph 2.7(c), a disturbance of consciousness. The applicant's 2002 seizure was caused by marijuana. The scientific literature states that such an event is unusual, but not impossible. Dr Jude was of the view that the additives used in the production of hydroponic marijuana made a seizure more likely.
58. Professor Beran had opined that the 2005 event was not a seizure and concluded that the applicant’s risk of further seizures was no greater than that which exists in the general community. This second event was more minor and plainly resulted from heavy use of hydroponic marijuana. Professor Beran had found no underlying pathology other than use of the drug. While an unprovoked episode could create the risk of recurrence, there was no risk if the applicant avoided the operative provocation, marijuana use. Dr Fitzgerald’s adoption of the idea of a five-year bar was based on the literature relating to unprovoked seizures.
59. The applicant’s marijuana use was not a bar to the issuance of a medical certificate, nor should it be if the underlying causes were addressed as contemplated by paragraph 2.6. He had not used the drug since 2005, and had been screened since then, with negative results. He had attempted to enrol in drug rehabilitation therapy but had been ineligible because he was not a current user. He had been given no opportunity to satisfy paragraph 2.6, the final decision being based both on paragraphs 2.7 and 2.6(c). The applicant remained perfectly willing to be screened.
60. Re Commins and Civil Aviation Safety Authority [2004] AATA 1330 showed that the use to be made of the license was relevant to the second issue, whether failure to meet the required standard was likely to endanger the safety of air navigation. The applicant sought the certificate solely for the purpose of continuing his flying training pursuant to a student pilot license.
Consideration
61. We cannot be certain as to the cause and nature of the two events in 2002 and 2005. We can be certain the 2002 event, as evidenced by Dr Gavaghan and agreed by Dr Jude and Professor Beran, was consistent with grand mal epileptiform seizures culminating in status epilepticus requiring three days hospitalisation. We cannot be certain as to the causation of the epileptiform seizure.
62. There was a preceding history of heavy marijuana use with confirmatory urine findings. Benzodiazepines were also found in the urine, explained by Dr Gavaghan as a consequence of treatment of the seizure and not the causation of the seizure, as Mr White wrote in his statement. The EEG showed non-specific changes and were not those of idiopathic epilepsy, but we are mindful of the fact the EEG can be non-specific or normal and this does not exclude idiopathic epilepsy. Investigations in Calvary found no neurological problems and he returned to his normal physical and mental self.
63. The circumstances surrounding the second event in 2005 are less clear. Mr White's statement was, "the next morning I woke up feeling light headed. I went straight for a hot shower to try and wake myself up. I got in, I got out and then I woke up on the lounge with Dad and my girl friend standing over me". That account differs from Professor Beran’s history of the event (para 40). There is no account of tonic or clonic movements. He was, however, admitted to hospital for observation. A subsequent sleep deprived EEG was normal.
64. Both Dr Jude and Professor Beran were unable to determine the nature of the episode or to say whether it was a seizure or syncope. Mr White was again smoking marijuana in 2005 which Professor Beran related to this episode.
65. The medical literature is inconclusive as regards the role of marijuana in seizures, some of the literature suggesting marijuana may be a preventative. We note that the two events occurred when Mr White was consuming significant quantities of marijuana. While there was a temporal relationship, we are unable to ascribe marijuana as the causative agent. In view of the altered liver function tests, the question of alcohol being responsible or playing a role also arises.
66. We are left with the situation of epileptic seizure(s) in 2002, causation not known, and another event in 2005 with loss of consciousness that the medical specialists are unable to define or diagnose. Regulation 67.010 provides that the Class 2 Medical Standard is set out in table 67.155 of the CASR. The relevant part of the table is as follows:
…
Nervous system
2.7Has no established medical history or clinical diagnosis of:
(a)a safety-relevant disease of the nervous system; or
(b)epilepsy; or
(c)a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur
…
67. We are reluctant to label Mr White as having epilepsy, although that diagnosis cannot be ruled out with certainty. The 2002 event was epilepsy but as evidenced by Dr Jude, in neurological circles, two separate epileptic events are required for diagnosis. There is no special test that can conclusively demonstrate whether the applicant does or does not have epilepsy. Even so, Dr Jude has given a 5-10 percent likelihood of recurrence in the 5 years after 2005.
68. The more appropriate diagnosis for the purposes of the Act is "a disturbance of consciousness for which there is no satisfactory medical explanation". The interruptions to consciousness in 2002 were epileptiform seizures for which no cause was found. The 2005 event has not been satisfactorily explained on a medical basis and, as indicated by Dr Jude, the tribunal cannot be satisfied such episodes will not recur.
69. CASA will not consider reassessing him until the year 2010, at which point they would expect him to be seizure-free. The Designated Aviation Medical Examiner’s Handbook (T pp38-50) states, “An individual with a single epileptiform seizure is initially unfit for medical certification. A case may be reconsidered five years from a seizure [with conditions to be met]”. This could be interpreted as 5 years from the date of seizure in 2002. However, in view of the further unexplained event in 2005 and Dr Jude’s opinion that there is a 5-10 percent risk of further seizure in the next 5 years, a reassessment of a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur is reasonable.
70. CASA would also require that he be assessed by a specialist in alcohol and drug rehabilitation and undergo a course of rehabilitation treatment, with a successful outcome.
71. The applicant's submission is that excessive use of marijuana was responsible for the seizure event in 2002 and the syncopal event in 2005 and that he was fully investigated in Calvary Hospital and again at the time of the 2005 event. He argues that all the medical reports provided to CASA demonstrate that there is nothing unexplained about his historical symptoms; and perhaps more significantly, they demonstrate that he is at no higher risk than any other member of the population of any seizure event. He further submits that far from suffering any unexplained neurological disturbance, he does not suffer any disturbance whatsoever.
72. The problem for Mr White is that although there is no satisfactory explanation for his loss of consciousness this does not in itself mean that he may not be at risk of further seizures. Mr White attributes the events to his use of marijuana and believes that now that he is free of the habit, he will have no further such events. The tribunal accepts Mr White was smoking marijuana in 2002 and 2005 and heard his evidence that he is currently free of the habit. The tribunal does not accept that marijuana alone was responsible for the events.
73. There remains a concern about Mr White's future use, a view proffered by Professor Beran. Dr Gavaghan was supportive of Mr White in that he feels “he is making a significant effort not to use any drugs of addiction and alcohol for the future". That does not satisfy the medical criterion for medical standard 67.155.2.6 as set out in the CASR.
74. We note that Dr Jude reported Mr White's alcohol intake as moderate and blood tests on 15 January 2007 showed liver impairment interpreted by Dr Gavaghan and Professor Beran as resulting from alcohol.
75. Item 2.6 of table 67.155 requires that, in the presence of a history of problematic substance abuse, a person's abstinence from that substance must be certified by an appropriate specialist medical practitioner, he is not suffering any safety relevant sequelae and that he is undertaking or has successfully completed an appropriate course of therapy. We do not have any certification by an appropriate specialist and no evidence of rehabilitation other than a note from a general practitioner, Dr Tan, that he will be attending a relapse prevention program at Pathways Drug and Alcohol Services soon, and Mr White’s advising of his enrolment in the course.
76. In relation to the second issue, whether the extent to which the applicant fails to meet the required standard is likely to endanger the safety of air navigation, Dr Ward pointed out that the applicant’s proposed solo flying would be conducted subject to the limitations of a student pilot license, and that factor was relevant to the question of safety risk.
77. The tribunal pointed out in Re Hall and Civil Aviation Safety Authority [2004] AATA 21 at para 45 that even where a risk is a small one, when issues of air safety are under consideration a small risk may suffice to trigger the need to take appropriate action to address the risk.
78. In Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952 at paras 65-66, the tribunal made the point even more strongly:
…
65.Whether Mr Mulholland has a high risk or a low risk of losing consciousness while flying an aircraft is simply irrelevant. The fact is that he has a risk of incapacitation which is significantly different to the remainder of the aviator population who do not suffer from syncope or any other safety-relevant medical condition. In our view the risk of incapacitation is real and not an imaginable or fanciful risk nor is it a remote risk.
66.Whatever the risk may be of Mr Mulholland suffering a syncopal attack whilst flying, it is not to the point that it can be shown statistically that the risk is small. …
…
79. The respondent submitted, and the applicant did not dispute, that the nature of the incapacity that might be caused by a seizure event was also relevant in any risk assessment. Such an event would lead to a degree of incapacity totally destructive of the applicant’s ability to control an aircraft in flight. Dr Fitzgerald in his oral evidence pointed out that the risks involved in a seizure are not subtle, but produce an active incapacity. Even a safety pilot might not be able to wrench the applicant's hands off the controls.
80. The evidence shows that there is a real and not fanciful risk of another seizure. In light of the tribunal’s duty under s 9A(1) of the Act to regard the safety of air navigation as the most important consideration in the exercise of the relevant powers, and given the potentially catastrophic consequences of such a seizure, we conclude that the extent to which the applicant fails to meet the relevant standard is likely to endanger the safety of air navigation.
81. As regards the third issue, whether any conditions could be imposed on a medical certificate that would ameliorate the threat to air safety, we note the applicant’s willingness to be screened for any problematic substance use. The applicant did not suggest any other conditions that might be appropriate.
82. Conditions requiring drug testing are not appropriate in the absence of a certification from an appropriately qualified specialist that the applicant is free from problematic use of alcohol and marijuana within the meaning of para 2(6) of the standard, especially when use of both may be implicated in his ongoing seizure risk.
83. Dr Fitzgerald’s evidence that the nature of a convulsive seizure would mean that even the presence of a safety pilot would not eliminate the risk of a seizure-induced loss of control, would not be an appropriate condition either. No other suitable condition is apparent.
84. We therefore conclude that no conditions could be imposed that would ameliorate the threat to air safety.
85. Mr White does not meet the class 2 medical standard set out in table 67.155 of the CASR.
86. It therefore follows that the decision under review must be affirmed.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President and Dr MEC Thorpe, Member
Signed: ...........................[sgd]...........................................
Renee Wallace, AssociateDate/s of Hearing: 29 April 2008
Date of Decision: 27 June 2008
Counsel for the Applicant: Dr C Ward
Solicitor for the Respondent: Mr J Rule, CASA
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