Whitehall and Civil Aviation Safety Authority

Whitehall and Civil Aviation Safety Authority [2019] AATA 709 (14 March 2019)
Division: GENERAL DIVISION
File Number(s): 2018/0199; and 2018/0474
Re:Nathaniel Whitehall
APPLICANT

AndCivil Aviation Safety Authority
RESPONDENT

DECISION
Tribunal:Deputy President Ian Hanger AM QC
Member Dr Stephen Lewinsky
Date:14 March 2019
Place:Canberra

The Tribunal dismisses application 2018/0199 under s 42A(1) of the Administrative Appeals Tribunal Act 1975.
The Tribunal affirms the reviewable decision dated 29 January 2018 in application 2018/0474.
………………………………………..
Member Dr Stephen Lewinsky
Catchwords
CIVIL AVIATION – whether the applicant meets the medical standard for the issue of a Class 1 medical certificate – whether the extent to which the applicant fails to meet those standards is likely to endanger the safety of air navigation – whether any conditions could be imposed upon a medical certificate which would ameliorate any threat posed to air safety – applicant has a medically significant condition that is safety relevant – applicant has a severe opioid dependence and moderately severe benzodiazepine dependence – applicant’s abstinence from problematic use of opioids and benzodiazepines not certified by an appropriate specialist medical practitioner – reviewable decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 s 25, 42A
Civil Aviation Act 1998 ss 3, 3A, 9A, 20AB, 31
Civil Aviation Safety Regulations 1998 regs 61.410, 67.015, 67.150, 67.180, 67.180, 67.240, 201.004
Secondary Material
Australian Medicines Handbook Pty Ltd, Australian Medicines Handbook 2018 (July, 2018) < FOR DECISION
Deputy President Ian Hanger AM QC
Member Dr Stephen Lewinsky
14 March 2019
BACKGROUND

The issue in this matter is whether Mr Nathaniel Whitehall, the applicant, meets the medical standard for the issue of a Class 1 medical certificate to enable him to fly as a pilot on a commercial passenger aircraft. If he does not, the issue is whether the extent to which he fails to meet those standards is likely to endanger the safety of air navigation and whether any conditions could be imposed upon a medical certificate which would ameliorate any threat posed to air safety.
The applicant sought review of two decisions of the Civil Aviation Safety Authority (CASA), the respondent in these proceedings:
(a)the decision (Class 2 decision) by a delegate of the respondent dated 14 December 2017 to suspend the applicant’s Class 2 medical certificate pursuant to reg 67.240 of the Civil Aviation Safety Regulations 1998 (the CASR). This is the subject of proceedings 2018/0199.
(b)the decision (Class 1 decision) by a delegate of the respondent dated 29 January 2018 to refuse to issue the applicant with a Class 1 medical certificate pursuant to reg 67.180(7) of the CASR. This is the subject of proceedings 2018/0474.
The application to review the Class 2 decision was dismissed by consent because the license that would have resulted from it had expired by the effluxion of time. The issues in relation to each license were in any event the same. That leaves only the Class 1 decision for review.
THE LEGISLATIVE REGIME
The subject of air safety is dealt with in the Civil Aviation Act 1988 (the CA Act). Section 3A provides: “The main object of the act 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.”
Section 9A provides that in exercising its powers and performing its functions CASA must regard the safety of air navigation as the most important consideration.
Section 20AB(1) of the CA 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.
By s 3 of the CA Act, the term “civil aviation authorisation” is defined to include, inter alia, a certificate issued under the regulations.
Regulation 61.410 of the CASR provides that, in relation to a private pilot license, the holder of such a licence is only authorised to exercise the privileges of that license if they hold a current Class 1, or Class 2, medical certificate.
Regulation 67.180 of the CASR provides for the issuing of medical certificates and such certificates can be issued subject to conditions. That regulation prevents the respondent issuing a medical certificate unless the applicant meets the “relevant medical standard” or the extent to which the applicant does not meet that standard is not likely to endanger the safety of air navigation.
The relevant medical standard for each class of license is specified. Regulation 67.150 provides that a person who meets the criteria listed below (subject to other relevant exceptions) meets medical standard 1:
1.1Has 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
1.2Has no physical conditions or limitations that are safety-relevant
1.3Is not using any over-the-counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side effects likely to affect the person to an extent that is safety-relevant…
1.4Has no established medical history or clinical diagnosis of any of the following conditions, to an extent that is safety-relevant:
(a) psychosis;
(b) significant personality disorder;
(c) significant mental abnormality or neurosis

1.5Does 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)
1.6If there is any personal history of problematic use of a substance (within the meaning given by section 1.1 of Annex 1, Personal 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, and 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.
Regulation 67.015 provides 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 licence that he or she holds or has applied for”.
Section 31(1)(b)of the CA Act provides that a reviewable decision includes a decision to refuse to grant a certificate.
Section 31(2) provides that application may be made to this Tribunal for review of a reviewable decision. Similar provision is made in reg 201.004 of the CASR for review of decisions under those regulations.
This Tribunal therefore has jurisdiction to hear the application for review pursuant to the provisions of s 25 of Administrative Appeals Tribunal Act 1975.
INTRODUCTION
The applicant gave evidence that he is a very experienced pilot. He received a Canadian commercial Pilot’s License in 1989. He worked in general aviation in Canada operating a small aircraft in charter, and in air work, parachuting and flight instruction for 18 months. He was awarded an Australian Commercial Pilot’s License and a Grade 2 Instructor Rating in Australia in 1991 and obtained the Australian Transport Pilot’s Licence in 1993. He was awarded his Class One Instructor rating in 1992.
As a flight instructor he trained many pilots. In 1994 he became a Chief Flying Instructor. In 1994 he joined the regional airline known as “Impulse Airlines”. He joined Ansett Airlines and flew the Boeing 737 and then the Boeing 767. After the demise of Ansett Airlines, he joined Qantas Airways initially as a contract Boeing 767 first officer before joining the Boeing 747 fleet. In 2014 he was assigned a position on the Airbus A380 as a second officer, an aircraft that carries up to 540 passengers. As a second officer he shares the piloting work with the captain. He says, and it is well known, that pilots are required to rigorously maintain their skills and that they are routinely tested for drugs. He says that he has not failed any tests of his skill or any drug tests.
Unfortunately, the applicant suffered from a degenerative disc disease in his lumbar spine. This manifested itself in the mid-1990s and resulted in long periods that were pain-free and short periods of pain which lasted for two or three days. From approximately 2012 the attacks became more regular and more intense. In 2013 he says that he progressed from using analgesics to control the pain to the use of mild opioids in tablet form.
Chronology of use of medication and treatment
From about August 2014 the applicant became a heavy user of opioid medication in the form of oxycodone and Panadeine Forte. To this was added, in November 2014, Tramadol.
In January 2015 Pharmaceutical Benefits Scheme (PBS) records (and as supported by other sources) show that the applicant was prescribed 56 oxycodone tablets and 20 Tramadol tablets. His flying records show that on 1 January 2015 he departed Sydney and returned on 5 January 2015; he departed Sydney on 10 January 2015 and returned 14 January 2015. Each time he was working as a Qantas crew and that means at times he was in control of the aircraft and almost all flights referred to hereunder were international flights.
In February 2015, records show that the applicant was prescribed 28 oxycodone tablets, 20 Panadeine Forte tablets and 20 Tramadol tablets and made overseas flights as flight crew departing 9 February 2015, departing 20 February 2015 and returning 24 February 2015.
In March 2015 the applicant was prescribed 28 oxycodone tablets, 40 Panadeine Forte tablets and 40 Tramadol tablets. In that month he departed Sydney on 6 March 2015 and returned on 10 March 2015. He departed Sydney on 25 March 2015 and returned on 27 March 2015. He departed Sydney on 30 March 2015 and returned on 1 April 2015. On each of these flights he was flight crew.
In April 2015 the applicant was prescribed 84 oxycodone tablets, 60 Panadeine Forte tablets and 20 Tramadol tablets and again continued flying.
In May 2015 the applicant was prescribed 76 oxycodone tablets, 20 Panadeine Forte tablets and 40 Tramadol tablets and continued flying.
In June 2015 the applicant was prescribed 84 oxycodone tablets in 20 Panadeine Forte tablets but there is no evidence of any flights taken in that month.
In July 2015 the applicant was prescribed 84 oxycodone tablets, 80 Panadeine Forte tablets, 40 Tramadol tablets and continued flying.
In August 2015 the applicant was prescribed 56 oxycodone tablets, 20 Panadeine Forte tablets and 20 Tramadol tablets and continued flying.
In September 2015 the applicant was prescribed 104 oxycodone tablets, 60 Panadeine Forte tablets and 40 Tramadol tablets and made no flights.
In October 2015 the applicant was prescribed 168 oxycodone tablets, 40 Panadeine Forte tablets and 40 Tramadol tablets and made no flights.
In November 2015 the applicant was prescribed 168 oxycodone tablets, 48 Panadeine Forte tablets and 40 Tramadol tablets. On 2 November he was stood down from duty pending medical review following reports made to Qantas management by fellow employees raising concerns about his fitness for duty. The use of these opioid drugs continued during the ensuing months but he was not working.
On 11 March 2016 the applicant underwent a laminectomy, discectomy, and fusion of the lower spine by Professor Mark Sheridan. Obviously post operatively that entailed substantial pain. In the month of this operation he was prescribed 196 oxycodone tablets and 60 Panadeine Forte tablets.
In April 2016 the applicant was prescribed 168 oxycodone tablets in 20 Panadeine Forte tablets.
In May 2016 the applicant was prescribed 252 oxycodone tablets. On 2 May he attended for a medical review with Dr Russell Brown at Qantas and sought clearance to return to flying duty. This was declined because he was continuing to use opioid medications. At that time Dr Brown made it clear to him that he would not be cleared to fly until he was completely free of opioid use.
On 18 May 2016 the applicant contacted Dr Brown who is employed by Qantas seeking medical clearance again. That was declined when it was established that he continued to use opioid medications.
In June 2016 the applicant was prescribed 160 oxycodone tablets. On 10 June 2016 his doctor, Dr John Schwartz, records in his notes: “is worried that having withdrawal vomited admits to problem does have a physical addiction discussed ketamine and Dr Michael davies (sic)”.
On 20 June 2016 Dr Schwartz referred the applicant to Dr Michael Davies for treatment of opioid dependence. On the following day the applicant was cleared to return to work by Dr Brown and he told the doctor that he was no longer using opioid medication. That was obviously completely misleading. Furthermore, Dr Brown gave evidence that the drugs used for treating addiction are also incompatible with flying. On 21 June 2016, the applicant signed a ‘Safe Return to Work Plan (SRWP Agreement)’ providing for no notice drug and alcohol screening.
In July 2016 the applicant was prescribed 160 oxycodone tablets. On 8 July 2016, he reported to Dr Schwartz that he had been suffering withdrawal symptoms after trying to go “cold turkey”. Between 18 July 2016 and 25 July 2016, the applicant underwent ketamine infusion with the aim of curing his addiction.
In August 2016 there were no prescriptions filled.
In September 2016 the applicant was prescribed 28 oxycodone tablets and 20 Panadeine Forte tablets. In this month he was also prescribed 12 buprenorphine tablets (Subutex) on 13 September 2016 at Scott Street clinic. Buprenorphine is a drug used for the treatment of addiction and he began his second clinical attempt on 13 September 2016 to deal with his addiction.
On 24 September 2016 the applicant recommenced flying and departed Melbourne on overseas flight and returned on 27 September 2016 to Melbourne.
In October 2016 the applicant was prescribed 36 oxycodone tablets and 10 buprenorphine. During October he departed on an overseas flight as aircrew on 2 October 2016 and returned on 5 October 2016. On 6 October 2016 he was given a urinary drug screen which tested positive for opioids and benzodiazepines. On 14 October 2016 he again flew from Sydney and returned on 17 October 2016. On 29 October 2016 he presented at Campbelltown Hospital emergency department suffering from opioid withdrawal.
On 2 November 2016 the applicant reported that he could not visit the Scott Street clinic (where he was being treated for his addiction) because he was busy with work.
On 3 November 2016 the applicant gave a urinary drug screen which was positive for opioids and benzodiazepines.
In November 2016 the applicant was prescribed 56 oxycodone tablets.
On 18 November 2016 the applicant was referred to the Oaks Medical Practice to continue his buprenorphine treatment. He told Dr Ron Campbell at that practice that he was a lawyer who had to travel overseas a lot. He admitted in evidence that he did that to minimise the risk of his opioid dependence being reported to CASA. That also enabled him to get buprenorphine to take away rather than consuming it at the doctor’s surgery.
In December 2016 the applicant was prescribed 28 oxycodone tablets and 18 buprenorphine tablets. On 10 December 2016 he departed Sydney as aircrew and returned on 14 December 2016. On 17 December 2016 he departed Sydney as aircrew and returned on 21 December 2016. On 28 December 2016 he departed Sydney as aircrew and returned on 1 January 2017.
On 5 January 2017 Dr Schwartz telephoned Dr Brown and expressed concerns to him with respect to the applicant’s use of opioid medication. On 6 January 2017 a urinary drug screen for Qantas returned positive reading for benzodiazepines.
On 14 January 2017 the applicant flew from Australia and returned on 17 January 2017. On 22 January 2017 he flew from Australia and returned on 25 January 2017. On 28 January 2017 a urinary drug screen tested positive for buprenorphine and benzodiazepines.
In February 2017 the applicant was prescribed 28 oxycodone tablets and 20 Panadeine Forte tablets and 28 buprenorphine tablets. On 1 February 2017 he flew from Melbourne and returned on 4 February 2017. On 15 February 2017 he flew from Sydney and returned on 18 February 2017. On 27 February 2017 he flew from Sydney and returned on 7 March 2017. In March he was prescribed 31 buprenorphine tablets.
In March 2017 the applicant was prescribed 31 buprenorphine tablets and flew into Australia. He flew out of Australia on 15 March 2017 and back again on 23 March 2017.
In April 2017 the applicant was prescribed 28 oxycodone tablets 25, temazepam and 30 buprenorphine tablets and continued his regular flying to overseas destinations from 7-11 April 2017; from 14-18 April 2017; from 21-24 April 2017.
On 27 April 2017 the respondent received information from New South Wales police expressing concern that the applicant may be addicted to OxyContin.
In May 2017 the applicant was prescribed 28 oxycodone tablets and 31 buprenorphine tablets. In early May Dr Peter Alexander Clem, Acting Principal Medical Officer with CASA, telephoned the applicant to discuss the information provided by the New South Wales police. The applicant denied any addiction to OxyContin. That was obviously untrue. He was taking the addictive drug (oxycodone) and the drug being used to cure him of the addiction.
On 15 May 2017 the respondent wrote to the applicant directing him to disclose his PBS and medical benefits scheme history for the past five years.
On 19 May 2017 a urinary drug screen was positive for buprenorphine and benzodiazepines.
In June 2017 the applicant was prescribed 28 oxycodone tablets, and 30 buprenorphine tablets. He flew 3–6 June 2017, and 23-26 June 2017.
On 26 June 2017 the respondent wrote to the applicant reminding him of the direction issued on 15 May and seeking his compliance with the direction to provide his PBS and Medical Benefit release.
On 30 June 2017 Dr Campbell records in his notes: “discussed positive finding of benzo on uds – states he had an old bottle of Valium which he finished but hasn’t taken any for one month”. On the same day the applicant obtained a prescription for diazepam from Dr Chaudry.
In July 2017 the applicant was prescribed 56 oxycodone tablets, 20 Panadeine Forte tablets, 25 temazepam tablets and 31 buprenorphine tablets. He flew from 2-6 July 2017, 14-17 July 2017, and 26-30 July 2017.
In August 2017 the applicant was prescribed 31 buprenorphine tablets. On 4 August 2017 he submitted a fresh application for his Class 1 and Class 2 medical certificates following an examination conducted by his Designated Aviation Medical Examiner (DAME). He flew from Sydney, 7 – 15 August 2017.
In September 2017 the applicant was prescribed 40 Panadeine Forte tablets, 50 temazepam tablets, and 30 buprenorphine tablets. He flew international flights from 6-9 September 2017; 15-18 September 2017; 21-26 September 2017. On 8 September the respondent again wrote to the applicant, directing him to disclose his PBS and MBS records, for the purpose of assessment in the context of his application for a new medical certificate.

On 20 September 2017 a doctor shopping report was produced by Dr Sharan Pobbathi in relation to prescribing activities for opioids and benzodiazepines between 1 June 2017 and 31 August 2017.
In October 2017 the applicant was prescribed 25 temazepam tablets and 31 buprenorphine tablets. His flying activities involved returning to Australia on 1 October. He then flew internationally from 6-9 October 2017, and 18-22 October 2017.
On 18 October 2017 the applicant provided CASA with his PBS prescribing history but it related to the period from May 2010 to May 2015 which was not what was asked for and obviously had nothing whatever to do with the issues which he knew were of concern.
On 24 October 2017 the applicant’s Class 1 medical certificate expired.
On 27 October 2017 the respondent wrote to the applicant requesting further information in order to assess his application for medical certification. It sought authorities allowing CASA to access the records of his various health providers as well as a psychiatric examination and tests for drugs of abuse.
In November 2017 the applicant was prescribed 50 diazepam tablets and eight buprenorphine tablets. In December 17 he was prescribed 25 temazepam tablets.
In December 2017 the applicant was prescribed 25 temazepam tablets.
On 29 January 2018 the applicant was supplied with 28 oxycodone tablets.
In March 2018 the applicant was prescribed 25 temazepam tablets.
In April 2018 the applicant was prescribed 25 temazepam tablets. In May 2018 he was prescribed 25 temazepam tablets. In June, July, August 2018 there are no opioid prescriptions. In September 2018 he was prescribed 20 Panadeine Forte tablets and 25 temazepam tablets. On 27 September 2018 he attended Dr Campbell’s rooms and underwent urinary drug screen which tested positive for opiates and benzodiazepines.
Apart from this continuous and very heavy use of prescription opioids, the applicant has made the extensive use of benzodiazepines. He used temazepam which is permitted in small quantities, diazepam (Valium) which is not permitted and an antidepressant.
The medications mentioned in evidence
It is convenient to set out in some detail the medications referred to.
The Australian Medicines Handbook is a reference reliably used by medical practitioners. It promotes the quality use of medications and is published in collaboration by the Pharmaceutical Society of Australia, the Royal Australian College of General Practitioners and the Australian Society of Clinical and Experimental pharmacologists. Excerpts from that handbook, as summarised by Dr Clem in his report, are set out below:
a.Opioids (oxycodone, Tramadol, codeine)
1.    “Dependence: Physical dependence: withdrawal symptoms (e.g. nausea, vomiting, diarrhoea, sweating, anxiety) occur if chronic treatment is stopped suddenly or an antagonist is given. Psychological dependence (a compulsion to use the drug) and addiction (compulsive use to the detriment of physical and/or psychological and/or social function) is probably uncommon in patients without a history of substance misuse.”
b.Oxycodone (Endone, OxyContin CR, Oxynorm);
1.    “Chronic noncancer pain: adult – involve a specialist pain team in assessing and managing the pain.”
2.    “Adverse effects: Common (>1%) nausea and vomiting, dyspepsia, drowsiness, dizziness, headache, orthostatic hypotension, itch, dry mouth, miosis, urinary retention, constipation.”
c.Tramadol (Lodam, Tramal, Tramadol SR)
1.    “Adverse events: common (>1%) headache, CNS stimulation, weakness, sweating, sleep disorder, dyspepsia, itch, rash.”
2.    “Tramadol can cause serotonin toxicity. Treatment with other drugs that may cause contribute to serotonin toxicity may increase likelihood; avoid combinations or monitor clinical course carefully.”
d.Codeine (combination products codeine 30 mg, paracetamol 500 mg (50) Panadeine forte:
1.    “codeine (a pro drug) is metabolised to morphine; people with normal codeine metabolism metabolise 30 mg of codeine to approximately 4.5 mg of morphine.”
2.    “beware of potential for misuse leading to dependence and overuse of OTC codeine combination products; this has resulted in toxicity from the non-opioid analgesic, e.g. acute renal failure and GI perforation from ibuprofen.”
e.Benzodiazepines (diazepam and temazepam)
1.    “Adverse effects: (>1%) drowsiness, over sedation, light-headedness, memory loss, hyper salivation, ataxia, slurred speech.”
2.    “Shorter acting agents (particularly those with rapid onset of action) are more likely to lead to acute withdrawal symptoms. diazepam’s rapid onset of action and long half-life mean it is associated with less withdrawal.”
3.    “Practice points: reserve for short-term use only (2-4 weeks); they should be part of a broader treatment plan; not a first or sole treatment. benzodiazepines are sometimes misused for their euphoric and sedative effects, both alone and with other drugs. Long-term use of benzodiazepines may result in tolerance and dependence; signs of dependence including drug seeking behaviour, craving, and disturbed work and personal function.”
4.    “Withdrawal symptoms: suddenly stopping treatment in dependent people may produce withdrawal symptoms, including anxiety, dysphoria, irritability, insomnia, nightmares, sweating, memory impairment, hallucinations, hypertension, tachycardia, psychosis, trembles and seizures. These may not occur until several days after stopping and can last for several weeks or longer after prolonged use.”
f.Serotonin selective reuptake inhibitors (SSRIs)-escitalopram (Esipram, Escicor, Lexam, Lexapro):
1.    “Adverse effects: Common (>1%) nausea, diarrhoea, agitation, insomnia, drowsiness, tremorl, dry mouth, dizziness, headache, sweating, weakness, anxiety, weight gain or loss, sexual dysfunction, rhinitis, myalgia, rash.”
g.Drugs for opioid dependence (buprenorphine)
1.    “Opioid dependence: use of opioids can produce euphoric effects. Tolerance to their pleasurable effects develops rapidly, causing users to repeatedly increase dosage and to use more dangerous routes of administration such as injecting or smoking.”
2.    “Opioids are often used with other substances, increasing risk and severity of toxic effects, e.g. alcohol, benzodiazepines.”
3.    “Criminal or high-risk activity may be necessary to finance the habit. It may be impossible to maintain usual activities e.g. employment, education, social interaction.”
4.    “Buprenorphine is a partial opioid receptor agonist. Reduces withdrawal symptoms and craving for opioids in opioid dependence.”
5.    “Adverse effects may be difficult to distinguish from mild opioid withdrawal.”
6.    “Adverse effects: common (>1%) constipation, dyspepsia, hypotension, nausea and vomiting.”
7.    “Counselling: avoid opioids, alcohol or benzodiazepines, as they will increase your risk of overdose.” “Buprenorphine may affect your ability to drive or operate machinery particularly when starting treatment, after the dose is increased or if you are taking other drugs.”
The medical evidence
Dr Clem has been a military pilot and a flying instructor. He is currently acting Principal Medical Officer of CASA.
Dr Clem summarises the effects of these medications as including, sedation, impaired alertness, delayed reaction, impaired judgement and decision making, loss of situational awareness and vertigo. Additionally, the effects related to withdrawal from opioid and benzodiazepines are also likely to be impairing. Those include anxiety, dysphoria, irritability, insomnia, nightmares, fatigue, sweating, memory impairment, hallucinations, hypertension, tachycardia, psychosis, and tremors and seizures.
Dr Clem says that all of the medications listed above are associated with adverse effects that may be hazardous to aviation safety. The CASA guidance material states that temazepam is a medication contrary to safe flying; and its online guidance material states that codeine, oxycodone and tramadol are medications that are prohibited in aviation.
Dr Brown gave evidence that OxyContin and the drugs used to treat addiction such as buprenorphine are “just not compatible with flying”.
The effect of drugs referred to
We take no account of the antidepressant medication. There is no evidence that such medication affects the ability to fly an aircraft or make appropriate decisions even though Dr Brown says he would not clear someone to fly while using escitalopram if he did not know why it was prescribed. The applicant had not revealed his continuous use of escitalopram which is an antidepressant.
Dr Michael Atherton gave evidence about the use of OxyContin (slow/modified release oxycodone) and referred to it as a longer acting opioid which would have an effect on an individual for about 12 hours. He referred to oxycodone (when as Endone) as having a relatively shorter period of activity and that Tramadol was a drug that one might take twice daily or perhaps three times a day. It acts for 6 to 8 hours. Buprenorphine is also an opioid with a very long active life. It depends on the individual but can act for in excess of 24 hours sometimes up to 48 hours (Transcript of Proceedings dated Thursday, 6 December 2018, p 150). Benzodiazepines are sedative drugs. They include diazepam and temazepam. Temazepam is a short acting drug, a few hours or so, whereas diazepam is quite a long acting drug and can last for as long as 24 hours. Valium is a brand of diazepam.
Dr Atherton expresses the view that the applicant suffers from opioid use disorder of a severe kind. He bases that conclusion on the diagnostic criteria set out in DSM 5. Dr Atherton also makes the diagnosis of benzodiazepine use disorder. He regards that disorder as moderate.
Dr Atherton, a specialist in addiction medicine, expresses the view that the applicant’s use of opioids constitutes a direct hazard to himself and also has significant aspect potentially on the lives of others given that he operates in safety sensitive aviation activities. He also says that his use of benzodiazepines in the manner that they have been used constitute a direct hazard to himself and to others. The use of the drugs that he has been taking can, he says lead to a reduction in cognitive function, an increased risk of accidents and other kinds of adverse outcomes and he points out that the mixing of the opioids with the benzodiazepines amplifies the potential adverse health outcomes beyond the use of the substances in isolation. He regards him as having become significantly impaired by his consumption of drugs from about January or February 2015 (Transcript of Proceedings dated Thursday, 6 December 2018, p 158).
Dr Atherton was asked about how long in his opinion Mr Whitehall could abstain from drug use having become addicted to them. All of Mr Whitehall’s flights are international involving very long periods in the cockpit. The doctor opined that Mr Whitehall could not abstain for drugs for longer than three days without significant withdrawal symptoms. Given the obligation on pilots to abstain from taking drugs of this nature, we are satisfied that the applicant must have been taking drugs either while flying or in the short period leading up to an international flight.
Dr Atherton also opined that both opioid and benzodiazepine dependence are chronically relapsing conditions and that the relapse rate after detoxification from opiates within the three-year period is around about 80% and at least 60%. Relapse rates in relation to benzodiazepine dependence are he believes very similar. The doctor expresses the opinion that in the absence of a drug rehabilitation program such as that offered in USA, nothing less than two or three years with demonstrated complete abstinence would be appropriate to enable the applicant to return to flying. He says that is the sort of time frame accepted internationally.
Dr Atherton says that at no point has there been a demonstration of abstinence from substance use disorder, including opiates or benzodiazepines, by the applicant. He says while there is an apparent non-use of opioids in the period leading up to September 2018 that does not mean that no opioids had been taken. He says that private scripts are not recorded in the pharmaceutical benefits scheme and so one does not know whether the prescriptions have been obtained privately outside the PBS scheme. He points to the fact that there was a positive drug test in September 2018.
Various witnesses including Dr Atherton have suggested that the applicant has a narcissistic personality. He appears to have some narcissistic personality traits but there is certainly insufficient evidence to conclude that that he suffers from narcissistic personality disorder. This was made clear to the applicant on a couple of occasions during the hearing. Nor did the respondent urge that there was sufficient evidence to make any diagnosis of narcissistic personality disorder of such a nature that it would prohibit him from being certified fit to fly. The evidence does not establish making such a finding and we will not refer to it again.
Evidence with respect to the use of medications pre-operatively
The respondent provided evidence set out above showing the extent to which the applicant purchased prescription medication in the period prior to his operation in March 2016. It was very substantial.
In January 2015 he continued to fly long international flights to Singapore and USA while being prescribed very significant doses of opioids. The applicant said that pilots were not permitted to have alcohol or any drugs within three days prior to making a flight. He agreed in cross examination that a flight to and from USA would involve basically one week of abstinence. Either he was in breach of the rule as he understood it to be, or, on the days when he believed that he could indulge, he was taking massive doses. It is difficult to believe, in light of the substantial acquisitions of opioids, that he was not consuming opioids during the period that he should not be consuming them. Dr Clem expressed the opinion that it would be unlikely that the applicant could abstain for the six days involved on overseas flights of the sort he was undertaking. The medical evidence which we accept is that if he abstained, as he asserted, he would have had withdrawal symptoms. The airline’s evidence is that any consumption at all was forbidden and precludes any flying.
Evidence with respect to the use of medications post operatively
In a letter from the neurosurgeon Dr Sheridan to Dr Pavesh Kapoor dated 1 April 2016, Dr Sheridan reports that his operation for a lumbar laminectomy and fusion went uneventfully and that he now needs to slowly wean himself off his OxyContin.
In a letter from Dr Sheridan dated 1 June 2016 he reports “he is slowly trying to wean off his OxyContin although he is finding it more difficult than he expected, which is not surprising given the length of time he was on them”.
In a letter from Dr Sheridan dated second of August 2016 he reports that the applicant is now doing very well. His back and leg symptoms have almost completely resolved and that he is back to his day-to-day activities without restriction.
It is clear from what we have set out above that the applicant was addicted to oxycodone, failed two treatment programs and continued to fly.
Issues that relate to the credit of the applicant
The applicant has not been entirely frank in describing his use of prescription drugs. There are a number of episodes that damage his credit. We mention a few of these.
He told Dr Atherton that after his operation in March 2016 he was slowly weaned off opiates over a three-month period and that at the end of three months he was taking no opiates. That was not true. On 20 June 2016 Dr Schwartz referred him to Dr Davies for treatment of opioid dependence. Yet on 21 June 2016 he was cleared to return to work by Dr Brown because he told Dr Brown that he was completely abstinent and had returned a urinary drug screen that was negative for opiates on 10 June 2016.
On 17 July 2016 he obtained a prescription from Dr Schwarz for OxyContin and was admitted to Campbelltown Private Hospital on 18 July 2016 where he was treated with intravenous ketamine for addiction. During his stay in the hospital he was on one occasion found semiconscious in the bathroom with the ketamine syringe in his hand having given himself a large bolus of ketamine. He was discharged from hospital on 25 July with a prescription for Endone and Valium.
Pilots must undergo a medical examination each year. As part of that process they have to complete a questionnaire. The questionnaire requires the pilot to disclose any medication which had been used in greater than two consecutive weeks. The applicant said that he considered the question only required him to make disclosure of medications he had used every day during that greater than two week period. He did not reveal his opioid medication use. The medical records show that in June 2015 he was prescribed twice daily doses of OxyContin well in advance of his August 2015 DAME examination. A DAME is a designated aviation medical examiner.
We do not accept the applicant’s explanation for failing to disclose his OxyContin use. He is an intelligent man and he would have known that it was a matter of great relevance to his employer. Indeed, the evidence from Dr Brown is that the policy of Qantas make it clear that the use of opioids is not compatible with safe flying duties and that pilots using opioids would not be rostered for flying duty. Pilots must undertake regular instructions about medications that they may not take.
After his back surgery, we are satisfied that he made a premeditated decision to deceive his employer into allowing him to return to flying duty when he knew full well that he was addicted to oxycodone.
The applicant deliberately kept from his employer the fact that he was being treated for opioid dependence with the use of ketamine and then later with the use of buprenorphine. When he came under the care of Dr Campbell for treatment of his addiction with buprenorphine he lied to Dr Campbell by telling Dr Campbell that he was employed as a solicitor rather than as an airline pilot because he realised that Dr Campbell would have reported his addiction to CASA if he told the truth.
The applicant was examined by his DAME, Dr Arthur Sik Yue Ban, in August 2016 for the purpose of medical certification and withheld from Dr Ban his true history of opioid use and that he had been treated with buprenorphine. He also failed to reveal that he was using diazepam and temazepam.
Dr Clem and Dr Brown indicated that the occasional use of temazepam, a short acting medication, was acceptable once or twice a week to help pilots get over the issues created by constant changes in their circadian rhythm. The airline acknowledged that long haul pilots would have difficulty sleeping at times and therefore had no objection to their using the occasional sleeping tablet. However, the long acting diazepam was regarded as unacceptable. Unfortunately, it would appear that Mr Whitehall uses more than the amount considered acceptable such that he is has been diagnosed by Dr Atherton as having a moderate addiction to benzodiazepines and to having a severe addiction to opioids.
In April 2017 Mr Whitehall was involved in a domestic dispute with his partner. She informed the police officers who attended that the applicant was addicted to OxyContin. They told CASA. During these proceedings Mr Whitehall said that the partner had totally fabricated what she had said to the police. That is of no concern to us because what she said to the police is irrelevant. Her statement put the police and then CASA on a line of enquiry.
CASA caused Dr Clem to speak to Mr Whitehall a few days later and Mr Whitehall denied that he had an addiction to OxyContin. The true situation is that at that point the applicant was still undergoing treatment with buprenorphine and routinely filling scripts for oxycodone. It was this episode that prompted Dr Clem to ask for Mr Whitehall’s MBS and PBS records. The applicant delayed providing these records and then provided the wrong records. His evidence was that the relevant authority was unable to provide them.

There are other matters that relate to the credit of the applicant but it is unnecessary to consider them all in detail. We do not accept him as a reliable witness and, where his evidence in relation to the use of medications is concerned, we find that he has been consistently dishonest and manipulative. He has attempted at least two courses of treatment for addiction but even during the treatment program was filling prescriptions for the medication which he was trying to come off. Unfortunately for him, the relapse rate for treatment of addiction is high and it is even higher in cases where the treatment has been unsuccessful and there has been one relapse. In late 2018 a urine test returned a positive result for both opioids and benzodiazepines; no record is available in respect of the possibility of private prescriptions that are not funded by the PBS.
Comment must also be made on the failure by the applicant to produce up-to-date evidence for this Tribunal. The evidence reveals that a test of a hair will reveal the history of drug taking. The applicant says (as he has said before to others) that he is free of drugs. If this is the case, evidence could have been called to show that he was in fact free of drugs. This was not done. In the course of the hearing he represented himself competently using his legal training. It may be the case, to his credit, that he has succeeded in overcoming his addiction but it would be completely irresponsible, given his history of deception, for us to be satisfied that he is medically fit to fly.
CONCLUSION
In order to obtain the Class 1 licence, the applicant has to meet the criteria set out in para 10 above. He has failed to do so. He has a medically significant condition that is safety relevant because it reduces his ability “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”. We are satisfied, accepting the evidence of all of the doctors but in particular Dr Atherton, that he has a severe opioid dependence and moderately severe benzodiazepine dependence. We accept the evidence that the rate of relapse from both disorders is extremely high.
We are satisfied that he used and possibly continues to use over the counter or prescribed medication that causes him to experience side effects likely to affect him to an extent that is safety relevant. Given our hesitation in accepting his evidence we are not satisfied his addiction has ceased.
We are satisfied that he engaged in problematic use of substances within the meaning given by s 1.1 of Annexure 1, Personnel Licensing, to the Convention on International Civil Aviation. The evidence indicates that there is a likelihood that he still engages in such problematic use.
We are satisfied that there is a personal history, problematic use of opioids and benzodiazepines and that his abstinence from problematic use of them has not been certified by an appropriate specialist medical practitioner and he has not provided evidence that he has undertaken or successfully completed an appropriate course of therapy.
The Tribunal affirms the reviewable decision dated 29 January 2018 in application 2018/0474.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Ian Hanger AM QC, and Member Dr Stephen Lewinsky

........................................................................
Associate
Dated: 14 March 2019

Date(s) of hearing: 4-7 December 2019; and 12 February 2019

Date final submissions received: 12 February 2019

Applicant: In person

Counsel for the Respondent: Mr Joe Rule, Civil Aviation Safety Authority

Solicitors for the Respondent: Ms Tanya Canny, Civil Aviation Safety Authority

[2019] AATA 709

14 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Date(s) of hearing:	4-7 December 2019; and 12 February 2019
Date final submissions received:	12 February 2019
Applicant:	In person
Counsel for the Respondent:	Mr Joe Rule, Civil Aviation Safety Authority
Solicitors for the Respondent:	Ms Tanya Canny, Civil Aviation Safety Authority