Andrews v Director of Civil Aviation

[2010] NZCA 505

IN THE COURT OF APPEAL OF NEW ZEALAND

CA611/2009
[2010] NZCA 505

BETWEENIAN DOUGLAS ANDREWS

Appellant

ANDTHE DIRECTOR OF CIVIL AVIATION

Respondent

Hearing:12 August 2010

Court:Glazebrook, Arnold and Randerson JJ

Counsel:C S Withnall QC for Appellant

D R Ferrier and S J R Jennings for Respondent

Judgment:9 November 2010 at 4 pm 

JUDGMENT OF THE COURT

A            The appeal is dismissed.

BThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]        This case concerns the power of the respondent, the Director of Civil Aviation (the Director), to place conditions on a pilot’s medical certificate under s 27I of the Civil Aviation Act 1990 (the Act).  The appellant, Mr Andrews, had been issued with a medical certificate by a medical examiner holding an appropriate delegation from the Director.  The Director disagreed with the medical examiner’s assessment of Mr Andrews’ cardiovascular risk and imposed conditions on his medical certificate.  Judge Tuohy held that he had no power to do so.[1] 

[1]      Andrews v Civil Aviation Authority DC Wellington CIV-207-085-802, 9 April 2009.

[2]        On appeal, Fogarty J disagreed, holding that the Director did have power to impose conditions in these circumstances.[2]  However, he granted the appellant, Mr Andrews, leave to appeal to this Court because he considered that the case raised an arguable question of law which was of some public importance.[3]

Background

[2]      The Director of Civil Aviation v Andrews HC Wellington CIV-2009-485-841, 29 July 2009.

[3]The Director of Civil Aviation v Andrews HC Wellington CIV-2009-485-841, 3 September 2009.

[3]        We will set out the statutory and regulatory background in more detail in the following section of the judgment.  It is sufficient at this stage to note that the Act establishes the Civil Aviation Authority of New Zealand (CAA),[4] which has an objective[5] and functions[6] directed at promoting the safety and security of civil aviation in New Zealand and elsewhere in accordance with New Zealand’s international obligations.  The Director is the chief executive of the CAA.[7]

[4]      Section 72A.

[5]      Section 72AA.

[6]      Section 72B.

[7]      Section 72I.

[4]        One of the medical requirements for pilots is that they have no history or diagnosis of an aeromedically significant heart condition and no excessive cardiovascular risk factors “unless normal myocardial perfusion can be demonstrated”.[8]  The degree of risk is addressed in medical directions which provide that a five-year risk of less than 10 per cent “may be interpreted as not being of aeromedical significance”.[9]

[8]      Civil Aviation Rules, r 67.105(d).

[9]      Civil Aviation (Examination Procedures) General Directions Notice 2006, sch 1, r 4.3.1.

[5]        Mr Andrews, who is around 66 years of age, obtained his private pilot’s licence in 1986.  In 1991 he suffered what was probably a minor stroke and did not fly again until 1994.  In 1994 he was assessed by a private sector aviation medical examiner (that is, one not employed by the CAA) who considered that he had a five‑year risk of six per cent.  As he considered that this was not of aeromedical significance, the examiner issued Mr Andrews with a medical certificate and he resumed non-commercial flights.  The examiner issued further medical certificates from time to time, the last being a class 2 medical certificate issued on 2 November 2006 for 24 months.

[6]        The Director has the power to conduct random audits of the current medical certificates of pilots.[10]  In the course of a routine audit of Mr Andrews’ medical certificate, the 1991 incident was noted.  On 7 February 2007, a senior CAA medical officer, Dr Preitner, wrote to Mr Andrews advising him that he was required to undergo medical tests (in particular a stress echocardiogram) to ensure that he was fit to fly.  Pending the outcome of these tests, Dr Prietner, acting on behalf of the Director, issued a notice of conditions and restrictions on Mr Andrews’ medical certificate under s 27I(1)(b) of the Act.  Under these, Mr Andrews was unable to carry passengers, tow a glider or fly over built-up areas.  This notice was stated to last for 10 days.[11]  The appellant then underwent the stress cardiogram, which produced a result “normal with no evidence of ischaemia”, although mild left ventricular hypertrophy was noted, consistent with treated hypertension. 

[10]      Section 27H(3)(a)(i).

[11]      Section 27I(6).

[7]        On 19 February 2007, before he had seen the results of this test, Dr Prietner issued a further notice under s 27I(7) imposing the same restrictions but for the duration of the appellant’s medical certificate.  He did this on the basis that he had reasonable grounds to believe that the appellant might be unable to exercise safely the privileges to which the certificate related.  This was because he (and other CAA medical personnel) considered that there was an excessive risk that the appellant might suffer a cardiovascular event given the 1991 incident.  CAA medical personnel considered that the appellant had a five-year risk of a cardiovascular event of somewhere between 10 and 20 per cent.

[8]        When the Director received the results of the echocardiogram, he referred the file to a neurologist, Dr Wallis, who gave an opinion that the appellant was neurologically unfit to fly.

[9]        Having been unable to resolve matters with the Director, the appellant appealed under s 66 of the Act to the District Court against the Director’s decision to impose conditions on his medical certificate.  As we have said, he was successful before Judge Tuohy.  The Act provides for an appeal on a point of law to the High Court[12] and then to this Court, provided that leave is granted.[13]  The Director exercised his right of appeal and succeeded.  Mr Andrews was granted leave to appeal to this Court.

Issues on appeal

[12]      Section 69.

[13]      Section 70.

[10]       In granting leave to appeal to this Court Fogarty J accepted that the case was an important one for the industry[14] and raised “questions of law capable of bona fide and serious argument each way”.[15]  The points of law which the Director identified for the purpose of his appeal to the District Court, and which Mr Andrews indicated in his notice of appeal were at issue, were as follows:

The District Court erred in law by applying a gloss to the statutory text of s 27(1) of the [Act] and giving the section a restrictive interpretation based upon the wording of other sections within Part 2A of the Act ...

Further, the District Court erred in law by holding that the formation by the Director of a view different to that of the Medical Examiner cannot, of itself, amount to reasonable grounds for belief that [Mr Andrews] may be unable to exercise safely the privileges to which [his] medical certificate relates ...

Further, the District Court erred in law by holding that section 27I(1) does not permit the Director to impose conditions on a medical certificate in the absence of any intervening change of circumstances ...

Further, the District Court erred in law by failing to determine the substantive medical question of the reasonableness of the Director’s grounds for belief that [Mr Andrews] may be unable to exercise safely the privileges to which [his] medical certificate relates (identified by the Director in his letters of 7 and 19 February 2007) ...

[14]      At [3] and [8].

[15] At [4].

[11]       However, before us Mr Withnall QC for Mr Andrews identified the essential issue as:

Whether the Director ... can lawfully impose restrictive conditions on a pilot’s existing medical certificate, notwithstanding that the pilot meets all the prescribed medical standards for the issue of a certificate, and there has been no change in the pilot’s medical condition since the issue of the certificate.

Mr Ferrier for the Director put it slightly differently, as follows:

Whether the High Court was correct to hold that s 27I(1) of [the Act] gives the Director the power to impose conditions on a medical certificate, that certificate having been issued a few months earlier by a medical examiner as a delegate of the Director.

[12]       We summarise the key point as follows: whether the Director is entitled under s 27I(1) and (7) to impose conditions on a medical certificate issued by a non-CAA medical practitioner holding an appropriate delegation in circumstances where there has been no change to the holder’s medical condition since the certificate was issued but the Director nevertheless considers that there are reasonable grounds to believe that, because of his or her medical condition, the holder may be unable to exercise safely the privileges to which the certificate relates.

[13]       We should emphasise that the appeal is on a point of law.  We were not provided with the correspondence, medical evidence and other details from Mr Andrews’ file.  Accordingly, we proceed on the basis of the facts as found by Judge Tuohy.

The statutory scheme

[14]       According to its long title the Act is to, among other things, “establish rules of operation and divisions of responsibility within the New Zealand civil aviation system in order to promote aviation safety”.  Similarly, an important function of the responsible Minister under the Act is to “promote safety in civil aviation”.[16]  The Act identifies the objective of the CAA as to “undertake its safety, security, and other functions in a way that contributes to the aim of achieving an integrated, safe, responsive, and sustainable transport system”.[17]  As is implicit in this, one of the CAA’s functions is to “promote civil aviation safety and security in New Zealand”.[18]  The Director’s functions under the Act include monitoring adherence to regulatory requirements relating to, among other things, safety.[19]  As Mr Ferrier pointed out, the Act’s focus on safety has been noted in a number of earlier decisions.[20]

[16]      Section 14A(a).

[17]      Section 72AA.

[18]      Section 72B(2)(a).

[19]      Section 72I(3).

[20]For example, Oceania Aviation Ltd v Director of Civil Aviation HC Wellington CP162/98, 9 August 2000 at [86] and Director of Civil Aviation v Paterson HC Wellington CIV‑2005‑485‑606, 27 April 2005 at [23] and 23 June 2005 at [20] and [59].

[15]       Besides a medical certificate, a person seeking a pilot’s licence must hold an “aviation document”.[21]  This is a document issued by the Director in respect of (in this instance) the particular person.  It may be for a specified period and/or subject to conditions.[22]  In determining whether to grant or renew such a document, the Director must consider whether the prescribed requirements are met, whether the person has the appropriate qualifications and experience and is a fit and proper person to hold the document, and whether it is contrary to the interests of aviation safety for the document to be granted or renewed.[23]  Moreover, the Director has the power to revoke, or impose permanent conditions on, an aviation document if he considers that it is necessary in the interests of safety.[24]

[21]Section 7(1)(b).

[22]Section 7(3).

[23]Section 9(1).

[24]Section 18.

[16]       Part 2A was incorporated into the Act from 1 April 2002.[25]  As Judge Tuohy noted,[26] it was inserted into the Act in response to the judgment of John Hansen J in Aviation Industry Association of New Zealand (Inc) v Civil Aviation Authority.[27]  In that case, the Judge had held that the Director had no power under the Act to issue medical certificates personally.  Rather, that was the function of aviation medical assessors, who were not CAA employees.

[25]      Civil Aviation (Medical Certification) Amendment Act 2001, s 5.

[26] At [25].

[27]Aviation Industry Association of New Zealand (Inc) v Civil Aviation Authority HC Wellington CP289/00, 24 August 2001.

[17]       A number of sections in Part 2A are relevant.  Rather than set them out in the body of the judgment, we have reproduced most of Part 2A in an appendix.

[18]       Several features of the statutory provisions are of particular importance:

(a)The Director has a broad power to delegate any of his or her functions under the Part to any suitably qualified medical practitioner who is an employee of the CAA.[28]  Although the Director has a more restricted power to delegate to suitably qualified medical practitioners who are not CAA employees,[29] the Director “must” delegate to them the power to issue medical certificates[30] (the Director is, of course, not precluded from delegating the same power to CAA medical practitioners).  Mr Ferrier said that the original Bill provided that the Director would issue all medical certificates but this was changed at the Select Committee stage.  Although the Committee considered that “the medical certification system should be centralised legally”, it considered that the operational function of issuing medical certificates should be delegated to medical examiners.[31]

[28]      Section 27N.

[29]      Section 27O(1).  The Director may not delegate the power to revoke medical certificates.

[30]      Section 27O(2).

[31]      Civil Aviation Amendment Bill (No 2) 2001 (104-2) (select committee report) at 6.

(b)However, no delegation to a non-CAA medical officer affects or prevents the Director from exercising any function or power, or affects the responsibility of the Director for the actions of that medical officer.[32]  In other words, despite such delegations the Director remains ultimately responsible.

[32]      Section 27O(7).

(c)An applicant for a medical certificate who meets the medical standards prescribed in the rules is not necessarily entitled to a medical certificate.  Such an applicant may be denied a certificate under s 27B(1) if the Director “has reasonable grounds to believe that applicant has any characteristic that may interfere with the safe exercise of the privileges to which the medical certificate relates”.[33]  This distinction between, on the one hand, meeting the prescribed medical standards and, on the other, being able to exercise safely the relevant privileges is maintained elsewhere in Part 2A,[34] as both Judge Tuohy[35] and Fogarty J[36] acknowledged.

[33]Mr Withnall referred to this aspect of s 27B(1) as the “proviso”.  We will describe it as the second element.

[34]      See ss 27C(5)(a) and 27H(4).

[35] At [49].

[36]      At [62]–[63].

(d)Conversely, an applicant who does not meet the medical standards prescribed in the rules may nevertheless obtain a medical certificate.[37]  There is what Part 2A describes as “flexibility” built into the system.[38]  In such a case, a medical certificate may be issued where:

[37]      Section 27B(2) and (3).

[38]      Section 27B(2).

·the failure to meet a prescribed medical standard is not likely to jeopardise aviation safety;

·the relevant ability, skill and experience of the applicant has been taken into account; and

·the medical certificate is endorsed with conditions[39] when the safe performance of the applicant’s duties so requires. 

This and the preceding point indicate that while the medical standards are important, they are not necessarily determinative.

(e)The point that compliance/non-compliance with the medical standards is not decisive is of particular significance in relation to the critical section in this case, s 27I.  Section 27I(1) provides that where the Director has reasonable grounds to believe that a licence holder “may be unable to exercise safely the privileges to which the licence holder’s medical certificate relates, the Director may” suspend or impose conditions on the certificate (emphasis added).  Section 27I(2) provides that where the Director has “reasonable grounds to believe that a licence holder is unable to exercise safely the privileges to which the licence holder’s medical certificate relates, the Director must” suspend, revoke or impose conditions on the certificate (emphasis added).  As the italicised language indicates, the standard in s 27I(1) is lower than the standard in s 27I(2) (“may be unable” as compared to “is unable”) and the Director faces different obligations in each situation.  But the substantive issue – the licence holder’s inability to exercise safely the privileges to which the medical certificate relates – remains the same.  Significantly, there is no reference in s 27I(1) or (2) to meeting the medical standards prescribed in the rules.  We will return to this aspect in the “Discussion” section of the judgment.

(f)Finally, we note that where the Director suspends or imposes conditions on a medical licence under s 27I(1) or (2), the suspension or conditions expire after 10 working days unless the Director extends the suspension or conditions for a further 10 working days,[40] or takes more permanent action under s 27I(7).

[39]      We will use the term “conditions” to include restrictions or endorsements.

[40]      Section 27I(5) and (6).

[19]       The references in the Part 2A provisions to “the medical standards prescribed in the rules” are to Part 67 of the Civil Aviation Rules, which addresses medical standards and certification.  Under r 67.105(a), an applicant who satisfies the standards in r 67.105(b) to (m) meets the medical standards for a class 2 certificate (the class of certificate held by Mr Andrews).  Of particular relevance is r 67.105(d), which provides:

Cardiovascular system

(d)         An applicant must–

(1)have no history or diagnosis of any condition of the heart or circulatory tree that is of aeromedical significance; and

(2)without limiting paragraph (d)(1), have no history or diagnosis of any of the following specific medical conditions, to an extent that is of aeromedical significance:

(i)coronary artery disease;

(ii)left bundle branch block;

(iii)right bundle branch block unless ischaemic causes have been excluded;

(iv)uncontrolled hypertension;

(v)abnormality of the muscle, valves, or conduction system of the heart;

(vi)abnormality of the rhythm of the heart; and

(3)without limiting paragraph (d)(1), have no disorder requiring a cardiac pacemaker; and

(4)have no excessive cardiovascular risk factors unless normal myocardial perfusion can be demonstrated.

[20]       The meaning of “aeromedical significance” is given in r 67.3(a) as follows:

A medical condition is of aeromedical significance if, having regard to any relevant general direction, it interferes or is likely to interfere with the safe exercise of the privileges or the safe performance of the duties to which the relevant medical certificate relates.

Rule 67.3(b) provides:

To avoid doubt, a medical condition that causes or is likely to cause incapacitation, sudden or otherwise, is a medical condition of aeromedical significance.

[21]       Finally, we must refer to the Civil Aviation (Examination Procedures) General Directions Notice 2006 (the General Directions).  The General Directions were issued by the Director under s 27G of the Act.  Section 4 deals with cardiovascular risk estimation.  Relevantly it provides as follows:

4.1         Definition

Cardiovascular risk estimation, in relation to an applicant, means the calculation of the applicant’s 5-year risk of a cardiovascular event based on medical information.

4.2         Conduct of examination

4.2.1The 5-year risk of a cardiovascular event must be calculated using the cardiovascular risk assessment procedure described at pages xxi to xxiii of the New Zealand Guidelines Group evidence-based best practice guideline titled The Assessment and Management of Cardiovascular Risk (ISBN 0-476-00091-2) (which can be downloaded from the New Zealand Guidelines Group website at or other similar tool approved by the Director.

...

4.3Interpretation of results

4.3.1A 5-year risk of less than 10% may be interpreted as not being of aeromedical significance.

4.3.2A 5-year risk of or over 10% must be interpreted as being of aeromedical significance unless the presence of ischaemic heart disease has been excluded.

...

4.5Period of validity of results

The results of a cardiovascular risk estimation are valid for a period of 90 days from the date of the examination.

Basis of appeal

[22]       Mr Withnall argued that Mr Andrews met the medical standards prescribed by the rules and was issued with a medical certificate by a medical examiner holding a delegation.  The Director had no independent power under s 27I to revoke, or impose conditions on, Mr Andrews’ medical certificate.  He submitted that s 27I had to be read in light of ss 27C and 27H. 

[23]       The legislative scheme which emerges from these provisions, Mr Withnall submitted, was as follows. In circumstances where medical certificates have been issued:

(a)Licence holders and medical examiners (among others) have an obligation to report to the Director changes in medical condition that may interfere with the safe exercise of the privileges to which the particular medical certificates relate.[41]

(b)The Director has the power in various circumstances to review the medical condition of a licence holder.  In particular, the Director may:

·Require a licence holder to undergo medical tests and examinations where he or she has reasonable grounds to believe that the licence holder may be unable to exercise safely the privileges to which the medical certificate relates or has obtained the medical certificate fraudulently.[42]

·Where a medical certificate is granted by a medical examiner who is not a CAA employee, withdraw the certificate within 60 days of its issuance and require the holder to supply additional medical information.  The Director must then decide whether to reissue the medical certificate.[43]

·Require a licence holder to undertake medical tests or examinations where he or she reasonably believes that the tests or examinations are necessary to enable him or her to randomly monitor licence holders or medical examiners, or investigate whether a licence holder’s medical certificate was issued in error.[44]

·Require a licence holder to disclose relevant information in order to determine whether or not the licence holder meets the medical standards prescribed in the rules or is able to exercise safely the privileges to which the medical certificate relates.[45]

[41]      Section 27C.

[42]      Section 27H(1).

[43]      Section 27H(2).

[44]      Section 27H(3).

[45]      Section 27H(4).

[24]       Mr Withnall said s 27I had to be seen against this background.  While s 27I(1) and (2) provided what appeared to be wide powers of suspension, amendment or revocation, properly interpreted, they provided powers which could be exercised only incidentally or ancillary to performing one of the functions identified in ss 27C and 27H.  Mr Withnall pointed out that the latter sections did not themselves contain powers of the sort contained in s 27I(1) and (2).  In this context, Mr Withnall relied on the following extract from Judge Tuohy’s judgment:[46]

The existence of these specific powers [in ss 27H(2) and 27I(3)] militates against a construction of the more general power in s 27I(1) which would enable the limitations in the specific powers to be avoided.  Furthermore the whole policy of Part 2A ... would be subverted if the section was construed in the way contended for on behalf of the Director.  It would in effect enable the Director to exercise an unfettered power to review and overrule the assessment of a non-CAA examiner that an individual applicant met the medical standards and thus was entitled to a certificate without even requiring the Director to make his decision on the basis of those criteria.

The Judge went on to say:[47]

I consider that when the safety issue is the medical condition of a licence holder whose certificate has been issued by a non-CAA examiner, the formation by the Director or his employee delegates of a different view to that of the examiner in respect of a matter covered by the medical standards cannot of itself amount to reasonable grounds for belief under s 27I(1) or (2) and therefore cannot found a notice under either of those subsections or any consequential action under s 27I(7).  This is in effect what happened in this case.

[46] At [52].

[47] At [53].

[25]       Earlier in his judgment, the Judge identified what he considered to be two important policy features underlying the Act.  The first was the Act’s recognition of the role of non-CAA medical examiners.  The Judge said:[48]

The mandatory requirement to give suitably qualified medical examiners from outside the CAA the power to issue medical certificates indicates an intention by Parliament for pilots to retain the ability to seek and obtain medical certification from medical examiners who are not under the direct control of the Director.

And later, when discussing the specific regulatory mechanisms available to the Director to control the medical examination process, the Judge said:[49]

The Director has no power to intervene in an individual case where the application has been made to a non-CAA examiner.  That is consistent with the legislative intention that pilots should have the ability to apply to and obtain certification from examiners who are independent of the direct control of the CAA.

[48] At [31].

[49] At [35].

[26]       The second policy feature was the transparent and objective basis for the issue of medical certificates.  The Judge said:[50]

The standards contained in the Rule and the Directions together constitute a transparent and objectively verifiable process for an examiner to decide whether he or she is satisfied that an applicant meets the medical standards.  That is consistent with the mandatory requirement to issue a certificate if those standards are met.  It is also consistent with rights of review to an independent panel and appeal to the District Court given by ss 27L, 27M and 27P...

The Judge viewed the statutory scheme as one which:[51]

... draws a fine balance between giving the Director the powers necessary to generally control and supervise the medical certification process while ensuring that individual licence holders continue to have the protection from arbitrary treatment afforded by a transparent and objectively verifiable process encompassing a measure of independence from the CAA.

[50] At [36].

[51] At [45].

[27]       Mr Withnall challenged Fogarty J’s finding that the Director is responsible for aviation safety, arguing that the Director was responsible simply for the administration of the regulatory system.

[28]       Finally, Mr Withnall addressed the second element in s 27B(1),[52] namely that the Director must issue a medical certificate to someone who meets the medical standards in the rules “unless the Director has reasonable grounds to believe that the applicant has any characteristic that may interfere with the safe exercise of the privileges to which the medical certificate relates”.  He argued that it referred to something other than the medical standards.  It was, he submitted, intended to address psychological or behavioural matters not amounting to medical conditions or disorders.

Discussion

[52]      See footnote 33 above.

[29]        As we have said, Judge Tuohy considered that the Director had no power under s 27I(1) or (2) to suspend or impose conditions on a medicate certificate because the Director held a different view from a non-CAA medical examiner in respect of a matter covered by the prescribed medical standards.[53]  Fogarty J disagreed.  We also disagree for the reasons which we now give.         

[53] See the extracts quoted from Judge Tuohy’s judgment at [24] above.

[30]       Clearly, a primary objective of the Act is to promote safety in civil aviation.[54]  One of the Director’s functions is to monitor regulatory requirements in relation to safety.  One aspect of this is that, although the Director is obliged to delegate the power to issue medical certificates to suitably qualified non-CAA medical examiners, such a delegation does not affect the Director’s responsibility for the actions of the examiner when acting under the delegation.[55]  In this sense, ultimate responsibility remains with the Director.  That suggests that, in principle, the Director should be able to intervene in decisions made by non-CAA medical examiners.

[54]      At [14] above.

[55]      Section 27O(7).

[31]       The Act facilitates the Director’s function of monitoring compliance with safety requirements in the present context in various ways.  Some relate to licence holders and others to medical examiners.

[32]       Beginning with licence holders, the Act provides for the ongoing monitoring of a licence holder’s medical condition.  The obligation placed upon licence holders, medical and aviation examiners, operators and physicians by s 27C to report changes in licence holders’ medical conditions to the Director is one element of this ongoing monitoring role.  Another is the Director’s power under s 27H(1) to require licence holders to undergo medical tests and examinations if the Director has reasonable grounds to believe that a holder may be unable to exercise safely the privileges to which the relevant medical certificate relates. 

[33]       It is significant that the latter power is framed in terms of the ability to exercise privileges safely rather than meeting the medical standards prescribed in the rules (that is, in terms of the second of the two elements referred to in s 27B(1) albeit without the reference to “any characteristic”).  In this respect, it is similar to the powers conferred by s 27I(1) and (2). 

[34]       In his submissions Mr Withnall sought to give particular weight to the first element referred to in s 27B(1), compliance with the medical standards prescribed in the rules.  He pointed to the process of consultation that precedes the promulgation of the rules and argued that they provided a transparent and objectively verifiable set of standards against which to assess medical suitability, as accepted by Judge Tuohy.  This supported his argument that the second element in s 27B(1), in particular its reference to “characteristic”, was concerned with psychological or behavioural factors rather than medical matters dealt with in the rules.  In short, Mr Withnall argued that the two elements were distinct rather than overlapping.

[35]       However, we see no reason to limit the second element of s 27B(1) in that way.  There are two reasons for this.

[36]       First, the phrase “any characteristic that may interfere with the safe exercise of the privileges to which the medical certificate relates” is not, on its face, limited to behavioural, psychological or similar “non-medical” factors.  Rather, as a matter of ordinary meaning, it is all-encompassing.

[37]       Second, to give primacy to the first element (compliance with the prescribed medical standards) would significantly limit the scope of the power conferred by s 27H(1)(a), which is framed in terms of the second element (inability to exercise privileges safely).  That language in s 27H(1)(a) must cover both medical and non-medical factors, including medical factors addressed in the rules.  We say this because:

(a)Section 27H is headed “Investigation of medical condition of licence holder”.[56] 

(b)Section 27H(1) empowers the Director to require a licence holder to undertake tests, examinations and re-examinations and to provide “any medical information” prior to the expiry of his or her medical certificate. 

(c)We consider that the limit suggested by Mr Withnall is contrary to the Act’s focus on promoting safety in aviation.[57]  As we see it, the purpose of s 27H(1)(a) is to give the Director the ability to intervene where there are reasonable grounds to do so, given the Director’s ongoing responsibilities for aviation safety.  There appears to be no rational reason to exclude the power of intervention under s 27H(1)(a) where the Director has reasonable grounds to believe that the holder does not meet the prescribed medical standards, even though a non-CAA medical examiner has issued a medical certificate.  Yet, as Mr Withnall acknowledged, on his argument the Director could not have reasonable grounds in those circumstances.

[56]      Interpretation Act 1999, s 5(2) and (3).

57      Ibid, s 5(1).

[57]      Ibid, s5(1).

[38]       Turning to medical examiners, the Act provides several mechanisms by which the Director can monitor the performance of their functions.  Where he or she has delegated the power to issue medical certificates under s 27O, the Director has the power under s 27H(2) to withdraw a medical certificate within 60 days of its issue if he or she wishes the licence holder to provide further medical information.  There is no “reasonable ground” limitation on this power, although once the further information had been obtained, the Director would be obliged to issue another medical certificate if the s 27B(1) requirements were met.  In addition, the Director has the power under s 27H(3) to monitor licence holders or medical examiners for compliance with the Act and rules.

[39]       Mr Withnall submitted that ss 27C and 27H provided the mechanisms that the Director is entitled to utilise to address the situation of a licence holder with a medical certificate issued by a non-CAA medical examiner.  The power conferred on the Director to suspend or impose conditions on certificates by s 27I(1) (or obligation in the case of s 27I(2)) was ancillary to these provisions.  The letter sent by the Director to the appellant on 7 February 2007 stated that the appellant’s 1991 health incident had come to light in the course of a random monitoring exercise.  This could be justified under s 27H(3).  As we understand it, the accompanying notice imposing conditions on Mr Andrews’ medical certificate was issued under s 27I(1)(b) and lasted only for 10 working days, while the subsequent notice of 19 February 2007 was issued under s 27I(7) and was for the duration of the medical certificate.  

[40]       Mr Withnall did not object to the exercise of s 27I powers in principle – he accepted that s 27H does not contain any power to suspend or impose conditions on a medical certificate, so that the powers under s 27I are necessary in some cases.  And, as we have said, the reasonable grounds standard in s 27H(1)(a) is the same as that in s 27I(1) and (2).  Rather, Mr Withnall’s objection was based on the fact that the Director assessed Mr Andrews as having a five-year cardiovascular risk of over 10 per cent, contrary to the view of the medical examiner and in circumstances where the stress test had indicated that Mr Andrews had no ischaemia.  To develop the latter point, on the assumption that the Director was entitled to require Mr Andrews to undergo further testing under s 27H(1)(a) and to impose conditions on his medical certificate under s 27I(1)(a) for a temporary period while that testing took place, he was not entitled to disregard the result of the testing and impose conditions permanently under s 27I(7).  By doing so, he was simply coming to a different view from the medical examiner but on the basis of the same information.

[41]       Section 4 of the General Directions deals with cardiovascular risk estimation.[58]  It describes the risk estimation period (five years) and states how the risk assessment must be undertaken.  It also deals with the interpretation of results by providing that a five-year risk of less than ten per cent “may be interpreted as not being of aeromedical significance”,[59] whereas a five-year risk of ten per cent or greater “must be interpreted as being of aeromedical significance unless the presence of ischaemic heart disease has been excluded”[60] (emphasis added).

[58] Reproduced at [21] above.

[59]      Rule 4.3.1.

[60]      Rule 4.3.2.

[42]       There are two noteworthy features of r 4.3.  First, r 4.3.1 does not require that a five-year risk of less than ten per cent be interpreted as being of no aeromedical significance.  Rather, the language is permissive.  Mr Withnall accepted that it confers a discretion.  Second, the same applies under r 4.3.2 where there is a five-year risk of ten per cent or more and ischaemic heart disease has been excluded.  In those circumstances the General Directions do not require that the results be interpreted as being of no aeromedical significance.  Rather, the medical examiner retains a discretion.  That being so, there are likely to be instances where different medical practitioners, acting reasonably, will take different views.  Given that the ultimate responsibility remains with the Director even where there is a medical certificate from a non-CAA medical examiner, it seems to us probable that Parliament intended that the Director should have the power to intervene where he or she did not agree with a medical assessment made in terms of the prescribed standards. 

[43]       In this context, it is important to emphasise that a decision by the Director under s 27I(1) or (2)  is subject to two significant forms of control:

(a)First, the Director cannot suspend or impose conditions on a medical certificate under s 27I(1) or (2) unless he or she has reasonable grounds to believe that the person may be (or, in the case of s 27I(2), is) unable to exercise safely the privileges to which the certificate relates.  The “reasonable grounds” relied upon must have a proper medical basis. 

(b)Second, where, having issued a notice under s 27I(1) or (2), the Director acts on a more permanent basis under s 27(7), the affected person has the ability to challenge the Director’s decision either through the convenor’s review process[61] or by way of an appeal to the District Court.  In these contexts, the Director will have to justify his or her actions.

[61]      See ss 27I(8) and 27L.

[44]       Accordingly, we do not consider it is correct to characterise the Director’s discretion under s 27I(1) as “unfettered”. While we accept that the Director should not lightly disagree with the assessment of a non-CAA delegate, we do not accept that the Director may never disagree unless he or she acts under 27H.

[45]       It is also relevant that, under s 27I(3), the Director has power to suspend, revoke or impose conditions on a medical certificate issued by a medical examiner holding a delegation where he or she has reasonable grounds to believe that the certificate has been issued other than in accordance with the delegation or the provisions of Part 2A.  This power is an independent one, as Judge Tuohy appears to have accepted.[62]  That being so, it is difficult to see why the powers in s 27I(1) and (2) should be treated as being parasitic.

[62] At [51].

[46]       Viewing s 27I(1) and (2) in this way is, in our view, consistent with the scheme of s 27H: 

(a)Under s 27H(2) the Director is entitled to withdraw a medical certificate as of right within 60 days after the date on which it was issued.

(b)Under s 27H(1) the Director may, if he or she has the required reasonable grounds, require a licence holder to undergo further testing or provide further information at any time during the currency of the medical certificate.

(c)Under s 27I(1), the Director may, if he or she has the required reasonable grounds, suspend or impose conditions on a medical certificate at any time during its currency.  This may be done in the context of a requirement for further testing under s 27H(1), for example, but may also be done independently.

Conclusion

[47]       We summarise our conclusions as follows:

(a)We do not accept that the Director’s powers under s 27I(1) and (2) may be exercised only where matters have been reported under s 27C or where he or she acts under s 27H.  While the s 27I powers may, of course, be utilised in those circumstances, they may also be utilised outside the context of those provisions, provided that the pre-requisites they contain are met.  Like Fogarty J, we do not consider that there is any justification for reading down the language of s 27I(1) or (2) in the way suggested by Mr Withnall.  Indeed, given the Act’s concern with the promotion of safety in civil aviation, and the Director’s responsibilities in that respect, there is every reason not to do so.

(b)We consider that, in principle, the Director is entitled to adopt a different view than that taken by a non-CAA medical examiner who issues a certificate in relation to a matter addressed in the prescribed medical standards.  Whether he or she is able to do so in any particular case will depend upon the circumstances.  The Director must be able to justify the view taken by reference to the reasonable grounds standard.

Decision

[48]       The appeal is dismissed.  The appellant must pay the respondent costs for a standard appeal on a band A basis, plus usual disbursements.

Solicitors:

Lane Neave, Christchurch for Appellant

APPENDIX

Civil Aviation Act 1990  

Part 2A

27A     Interpretation 

(1)In this Part, unless the context otherwise requires,—

accredited medical conclusion means the conclusion reached by 1 or more medical experts acceptable to the Director for the purposes of the case concerned, in consultation with flight operations or any other experts that may be necessary

applicant means a person who has applied for a medical certificate; and includes a licence holder who has reapplied for a medical certificate

licence holder means a person who—

(a)holds an aviation document or is a pilot; and

(b)holds, or is required under the rules to hold, a medical certificate

medical certificate means a medical certificate—

(a)issued by the Director under this Part to an applicant or licence holder; or

(b)recognised by the Director under the rules

operator includes an air traffic service provider.

(2)A medical certificate is not an aviation document.

(3)In this Part, the phrase privileges to which a medical certificate relates, and its variations, means those privileges under this Act that may be exercised by a person who—

(a)holds a current aviation document; or

(b)is permitted under the rules to operate an aircraft solo as a pilot.

27B    Power of Director to issue medical certificate 

(1)After considering an application for a medical certificate, the Director must, as soon as practicable but no later than 30 working days after the date of receiving the report of the medical examiner, issue the medical certificate if he or she is satisfied that the applicant meets the medical standards prescribed in the rules, unless the Director has reasonable grounds to believe that the applicant has any characteristic that may interfere with the safe exercise of the privileges to which the medical certificate relates.

(2)Despite subsection (1), the Director may, relying on flexibility, issue a medical certificate to the applicant.

(3)In subsection (2), flexibility means the use of medical judgment to issue a medical certificate if the following conditions are fulfilled:

(a)an accredited medical conclusion indicates that in special circumstances the applicant's failure to meet any medical standard prescribed in the rules is such that the exercise of the privileges to which a medical certificate relates is not likely to jeopardise aviation safety; and

(b)the relevant ability, skill, and experiences of the applicant and operational conditions have been given due consideration; and

(c)the medical certificate is endorsed with any conditions, restrictions, or endorsements when the safe performance of the applicant's duties is dependent on compliance with those conditions, restrictions, or endorsements.

(4)The Director may impose any conditions, restrictions, or endorsements on a medical certificate issued under this section.

(5)Before issuing a medical certificate, the Director—

(a)must have regard to the report of the medical examiner and any other information that may be relevant; and

(b)may require the applicant, at the applicant's expense, to undertake any other tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, as the Director reasonably considers necessary to assess the applicant.

(6)If the Director requires an applicant to undertake any other test, examination, or re-examination, or to provide any medical information, the period in which the Director must make a decision in relation to the medical certificate under this section does not include the number of days that are required to conduct and deliver the results of the test, examination, or re-examination, or to provide the medical information, to the Director.

(7)The Director must maintain a register of current medical certificates issued under this section.

(8)Any decision made under this section by the Director in relation to a medical certificate other than a decision under sub- section (5)(b) is subject to section 27L (review of decisions regarding medical certificates or applications).

27C    Changes in medical condition of licence holder 

(1)Subject to any directions that the Director may issue under section 27G(1)(b), if a licence holder is aware of, or has reasonable grounds to suspect, any change in his or her medical condition or the existence of any previously undetected medical condition that may interfere with the safe exercise of the privileges to which his or her medical certificate relates, the licence holder—

(a)must advise the Director of the change as soon as practicable; and

(b)may not exercise the privileges to which the licence holder's medical certificate relates.

(2)Subject to any directions that the Director may issue under section 27G(1)(b), if an aviation examiner or medical examiner or operator is aware of, or has reasonable grounds to suspect, any change in the medical condition of a licence holder or the existence of any previously undetected medical condition in the licence holder that may interfere with the safe exercise of the privileges to which the licence holder's medical certificate relates, the aviation examiner or medical examiner or operator must advise both the licence holder and the Director of the change as soon as practicable.

(3)Subject to any directions that the Director may issue under section 27G(1)(b), if a medical practitioner has reasonable grounds to believe that a person is a licence holder and is aware, or has reasonable grounds to suspect, that the licence holder has a medical condition that may interfere with the safe exercise of the privileges to which the licence holder's medical certificate relates, the … medical practitioner must, as soon as practicable,—

(a)inform the licence holder that the Director will be advised of the condition; and

(b)advise the Director of the condition.

(4)An aviation examiner or medical examiner or a medical practitioner is not subject to any civil or criminal liability for—

(a)doing an indemnified act in good faith in the course of carrying out his or her functions under this Part; or

(b)doing an indemnified act in good faith in the course of answering any questions put to him or her by the Director that—

(i)concern a licence holder; and

(ii)are relevant to any action the Director may take under this Part.

(5)In this section, indemnified act means any of the following acts:

(a)advising the Director, whether in writing or otherwise, that a licence holder—

(i)may not meet the medical standards prescribed in the rules; or

(ii)may be unable to exercise safely the privileges to which the licence holder's medical certificate relates:

(b)expressing to the Director, whether in writing or otherwise, an opinion that the licence holder who the aviation examiner or medical examiner or … medical practitioner has examined or treated may be unable to exercise safely the privileges to which the licence holder's medical certificate relates because of—

(i)illness or any bodily or mental infirmity, defect, incapacity, or risk of incapacity suffered by the licence holder; or

(ii)the effect on the licence holder of treatment for any illness, infirmity, defect, incapacity, or risk of incapacity:

(c)stating to the Director, whether in writing or otherwise,—

(i)the nature of a licence holder's illness, infirmity, defect, incapacity, or risk of incapacity; or

(ii)the effect on a licence holder of treatment for any illness, infirmity, defect, incapacity, or risk of incapacity.

27D     Medical examination, report, and disclosure 

(1)Before the Director issues a medical certificate, an applicant must have a medical examination by a medical examiner who must forward his or her report to the Director.

(2)The Director may, by written notice, require any applicant to disclose, or authorise the disclosure of, any information relevant to his or her medical condition or history for the purpose of determining whether or not the applicant is eligible for a medical certificate under section 27B.

27E    Expiry of medical certificate 

The Director may, on receiving an application for a medical certificate from a licence holder before the expiry of his or her existing medical certificate, grant an extension of no more than 60 days from the expiry date of the licence holder's existing medical certificate with any additional conditions, restrictions, or endorsements as the Director considers necessary.

27F    Designation of aviation examiners and medical examiners 

(1)The Director must designate, by issuing an aviation document under section 9, 1 or more medical examiners to conduct examinations under section 27D.

(2)The Director may designate, by issuing an aviation document under section 9, 1 or more aviation examiners to conduct specified examinations that the Director may require under this Part.

27G     General directions and emergency directives 

(1)The Director may, by notice in the Gazette, issue general directions in relation to—

(a)conducting examinations of applicants and licence holders, and reporting the results of those examinations to the Director; and

(b)providing exceptions for temporary medical conditions to the reporting requirements set out in section 27C; and

(c)specifying the requirements of examinations or other clinical matters, which must be reasonable, including, but not limited to,—

(i)the medical content of examinations:

(ii)the interpretation and analysis of results of examinations:

(iii)the significance of results of examinations for the purpose of determining whether or not an applicant is eligible for a medical certificate under section 27B.

(2)Before issuing general directions under subsection (1), the Director must consult with those persons, health professionals with aviation medical experience, representative groups within the aviation industry or elsewhere, government departments, and Crown agencies that he or she considers appropriate.

(3)General directions issued in relation to the matters specified in subsection (1)(a) or (c) must be—

(a)notified in writing to aviation examiners or medical examiners; and

(b)incorporated in a medical manual issued by the Director.

(4)The Director may issue directives in emergency situations without consultation or prior notice in the Gazette, but those directives—

(a)must be published in the Gazette as soon as practicable after they are issued; and

(b)expire on the day that is 90 days after the date on which they were issued.

(5)The Director may reissue, under subsection (1), directives issued under subsection (4) before or after they expire.

27H     Investigation of medical condition of licence holder 

(1)The Director may, by written notice, require any licence holder, at the licence holder's expense, to undertake any tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, at any time before the expiry of his or her medical certificate, if the Director has reasonable grounds to believe that the licence holder—

(a)may be unable to exercise safely the privileges to which the medical certificate relates; or

(b)has obtained his or her medical certificate fraudulently.

(2)If the Director has delegated under section 27O the authority to issue medical certificates to any medical examiner, the Director may, by written notice to the relevant licence holder, withdraw any medical certificate that the medical examiner has issued under that authority within 60 days after the date it was issued if the Director requires the licence holder to supply additional medical information, in which case the Director must decide whether to reissue the medical certificate in accordance with section 27B.

(3)The Director may, by written notice, require any licence holder, at the Authority's expense, to undertake any tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, at any time before the expiry of his or her medical certificate if—

(a)the Director—

(i)is monitoring licence holders on the basis of random selection from the register of current medical certificates that is required to be maintained under section 27B(7); or

(ii)has reasonable grounds to believe that the licence holder's medical certificate was issued in error; or

(iii)is monitoring aviation examiners or medical examiners for compliance with the requirements of this Act or the rules; and

(b)the Director has reasonable grounds to believe that any of those tests, examinations, re-examinations, or medical information are necessary to investigate the matters specified in paragraph (a).

(4)The Director may, by written notice, require any licence holder to disclose, or authorise the disclosure of, any relevant information for the purpose of determining whether or not the licence holder—

(a)meets the medical standards prescribed in the rules; or

(b)is able to exercise safely the privileges to which the medical certificate relates.

27I     Revocation, suspension, amendment, and surrender of medical certificate 

(1)If the Director has reasonable grounds to believe that a licence holder may be unable to exercise safely the privileges to which the licence holder's medical certificate relates, the Director may, by written notice to the licence holder,—

(a)suspend any medical certificate issued to the licence holder; or

(b)impose or amend any conditions, restrictions, or endorsements on any medical certificate issued to the licence holder.

(2)If the Director has reasonable grounds to believe that a licence holder is unable to exercise safely the privileges to which the licence holder's medical certificate relates, the Director must, by written notice to the licence holder,—

(a)suspend any medical certificate issued to the licence holder; or

(b)revoke any medical certificate issued to the licence holder; or

(c)impose or amend any conditions, restrictions, or endorsements on any medical certificate issued to the licence holder.

(3)If the Director has reasonable grounds to believe that a person who has been delegated authority under section 27O to issue a medical certificate has issued a medical certificate other than in accordance with this Part or the terms of the delegated authority, the Director—

(a)may, by written notice to the licence holder,—

(i)suspend any medical certificate issued to the licence holder; or

(ii)revoke any medical certificate issued to the licence holder; or

(iii)impose or amend any conditions, restrictions, or endorsements on any medical certificate issued to the licence holder; and

(b)may, by written notice to the person with delegated authority, revoke that person's delegated authority.

(4)Any notice issued under this section must state the grounds for the Director's decision.

(5)A notice of suspension issued under subsection (1)(a) or subsection (2)(a) or subsection (3)(a)(i) remains in force until the Director determines what action, if any, referred to in subsection (7) is to be taken, but any such suspension expires 10 working days after the date that the suspension is imposed unless, before the expiry of that 10-working-day period, the Director extends the suspension for a further specified period not exceeding 10 working days (the aggregate suspension period may not exceed 20 working days after the date on which the suspension is imposed).

(6)Any conditions, restrictions, or endorsements that are imposed or made under subsection (1)(b) or subsection (2)(c) or subsection (3)(a)(iii) remain in force until the Director determines what action, if any, referred to in subsection (7) is to be taken, but any of those conditions, restrictions, or endorsements expire 10 working days after the date that they are imposed unless, before the expiry of that 10-working-day period, the Director extends the conditions, restrictions, or endorsements for a further specified period not exceeding 10 working days (the aggregate period may not exceed 20 working days after the date on which the conditions, restrictions, or endorsements are imposed).

(7)If a notice is issued under subsection (1) or subsection (2) or subsection (3), the Director may, by written notice, take 1 or more of the following actions:

(a)impose or amend conditions, restrictions, or endorsements for a specified period:

(b)withdraw any conditions, restrictions, or endorsements:

(c)disqualify the licence holder from holding the medical certificate for a specified period:

(d)revoke the medical certificate:

(e)cancel the suspension.

(8)If the Director revokes a medical certificate under subsection (2)(b) or subsection (3)(a)(ii) or subsection (7)(d) or subsection (11) or imposes any conditions, restrictions, or endorsements on a medical certificate under subsection (7)(a) or disqualifies a licence holder under subsection (7)(c), the licence holder has 20 working days from the date of the decision to ask the convener to review the decision under section 27L, after which time the decision may not be referred to the convener.

(9)A person who has had his or her medical certificate revoked, withdrawn, or suspended or who is disqualified from holding the medical certificate for a specified period must surrender the medical certificate to the Director, a person authorised by the Director, or a constable.

(10)If the Director issues a notice under this section, the Director—

(a)must also, if practicable, notify any aviation document holder affected by the notice, other than the licence holder, if the Director reasonably considers it necessary for reasons of aviation safety; and

(b)may notify any other affected aviation document holder.

(11)The Director may, by written notice, revoke a medical certificate if a licence holder fails, without reasonable excuse, to comply with a demand under section 27H(1) or section 27H(3) or section 27H(4) within a reasonable period of time.

(12)Any licence holder may return his or her medical certificate to the Director and ask the Director, in writing, to cancel the medical certificate.

(13)If a licence holder asks the Director to cancel his or her medical certificate, the Director must—

(a)cancel the medical certificate; and

(b)update the register of current medical certificates.

27J     Appointment of convener and deputy convener 

(1)The Minister must—

(a)appoint a convener and a deputy convener for a period of no longer than 3 years; and

(b)consult with the Director, and other parties as the Minister thinks fit, before making either appointment; and

(c)take into account any representations made under paragraph (b).

(2)The Minister may renew an appointment as convener or deputy convener for 1 or more periods, each of which may not exceed 3 years.

(3)If the Minister renews an appointment, he or she must—

(a)consult with the Director, and other parties as the Minister thinks fit, before making the renewal; and

(b)take into account any representations made under paragraph (a).

(4)The convener and the deputy convener must—

(a)be medical practitioners who are suitably qualified, and experienced or knowledgeable in civil aviation; and

(b)be able to represent the public interest in aviation safety.

(5)If the convener is unavailable for any reason, the deputy convener must discharge the duties of the convener under this section until—

(a)the convener is available; or

(b)the Minister has appointed a new convener.

...

27L    Review of decisions regarding medical certificates or applications 

(1)A licence holder or an applicant may, within 20 working days of a decision being made, ask the convener in writing to review the following decisions made by the Director about that person's medical certificate or application:

(a)any decision made under section 27B, other than a decision made under section 27B(5)(b):

(b)any decision made under section 27I, other than a decision made under—

(i)section 27I(1); or

(ii)section 27I(2)(a); or

(iii)section 27I(2)(c); or

(iv)section 27I(3)(a)(i); or

(v)section 27I(3)(a)(iii).

(2)If such a request is made, the convener must, as soon as practicable, review the decision.

(3)The convener—

(a)must draw on the advice and expertise of at least 1 person who the convener is satisfied is suitably qualified and experienced to assist the convener in his or her assessment of the decision that is under review; and

(b)must have regard to the purpose and scheme of the Act and the Director's duties under the Act when carrying out his or her review of the decision; and

(c)may require the person who asked for the review, at that person's expense, to undertake any other tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, as the convener considers reasonably necessary to carry out his or her review of the decision; and

(d)must receive and consider the relevant evidence provided under subsection (6).

(4)The convener must, as soon as practicable, report the results of his or her review to the Director in writing.

(5)The Director must, within 10 working days of receiving the convener's report, implement the results of the decision contained within the convener's report or, if the Director does not implement the convener's report, notify the licence holder or applicant, in writing, of the Director's reasons for not doing so.

(6)The licence holder or applicant or Director may, either directly or through his or her medical experts, participate in the review process by providing relevant evidence to the convener regarding any medical matter at issue with respect to the decision that is under review.

(7)The convener may not review a decision made by the Director if the convener—

(a)acted as an aviation examiner or medical examiner of the person requesting the review with respect to that person's application for a medical certificate; or

(b)has any other conflict of interest with respect to the person's medical certificate.

(8)Any decision by the Director under review by the convener remains in force until the Director makes a final decision under subsection (5).

27M    Referral to convener by agreement 

(1)An application for a medical certificate may, by agreement in writing between the Director and the applicant, be referred to the convener for advice before the Director makes a decision on the application.

(2)If an application is referred to the convener under subsection (1),—

(a)the deadline imposed on the Director under section 27B(1) does not apply; and

(b)the convener must,—

(i)as soon as practicable, assess the application; and

(ii)draw on the advice and expertise of at least 1 person who the convener is satisfied is suitably qualified and experienced to assist the convener in his or her assessment of the application; and

(iii)require the applicant, at the applicant's expense, to undertake any tests, examinations, or re-examinations conducted by any suitably qualified and experienced person, or to provide any medical information, that the convener considers reasonably necessary to carry out his or her assessment of the application; and

(iv)have regard to the purpose and scheme of the Act and the Director's duties under the Act when making his or her assessment of the application; and

(v)as soon as practicable, report the results of his or her assessment to the Director in writing; and

(vi)receive and consider the relevant evidence provided under subsection (5).

(3)The Director must, within 10 working days of receiving the convener's report,—

(a)consider the convener's report; and

(b)make his or her decision in writing; and

(c)provide to the applicant—

(i)a copy of the convener's report; and

(ii)a copy of the Director's decision.

(4)If an application is referred to the convener under this section, the applicant may not ask the convener to review the Director's eventual decision.

(5)The applicant or Director may, either directly or through his or her medical experts, participate in the convener's assessment of the application by providing relevant evidence to the convener regarding any medical matter at issue with respect to that application.

(6)The convener may not assess the application if the convener—

(a)acted as an aviation examiner or medical examiner of the applicant with respect to that person's application for a medical certificate; or

(b)has any other conflict of interest with respect to the person's medical certificate.

27NDelegation of Director's powers under this Part to medical practitioners who are employees of Authority

(1)The Director may, either generally or particularly, delegate to any suitably qualified medical practitioner who is an employee of the Authority any of the Director's functions and powers under this Part or under the rules relating to medical certification.

(2)Every delegation under this section must be in writing.

(3)Repealed.

(4)Section 23A applies to a delegation under this section.

(5)Any delegation under this section may be made to a suitably qualified medical practitioner who is the holder of a specified office of the Authority.

27O     Delegation of Director's power under this Part to medical examiners who are not employees of Authority 

(1)The Director may, either generally or particularly, delegate to any suitably qualified medical examiner who is not an employee of the Authority any of the Director's functions and powers under this Part or under the rules relating to medical certification other than the power under this Part to revoke medical certificates.

(2)Despite subsection (1), the Director must delegate to suitably qualified medical examiners who are not employees of the Authority the power to issue medical certificates to any person who qualifies for a medical certificate under section 27B(1) or who otherwise meets the criteria for a standard medical assessment as prescribed in the rules or by the Minister under section 27Q(3).

(3)Every delegation under this section must be in writing.

(4)Subject to any general or special directions given or conditions imposed by the Director, any medical examiner to whom any functions or powers are delegated under this section may exercise those functions and powers in the same manner and with the same effect as if they had been conferred or imposed on that person directly by this Act and not by delegation.

(5)Any delegation under this section may be made to a specified medical examiner or a specified class of medical examiner or to the holder or holders of a specified office.

(6)Every delegation under this section must be given for a specified period but in any event must be revocable at will.

(7)No delegation under this section may—

(a)affect or prevent the exercise of any function or power by the Director; or

(b)affect the responsibility of the Director for the actions of any person acting under the delegation.

(8)Every delegation under this section continues in force until it is revoked or it expires, whether or not the person who made the delegation ceases to hold office.

(9)Every person purporting to act under any delegation under this section may, when reasonably requested to do so, produce evidence of his or her authority to so act.

(10)The Director may not delegate under this section any of his or her functions or powers under section 27L or section 27M.

27P    Right of appeal to District Court

Any person affected by a decision of the Director under section 27B (other than a decision made under section 27B(5)(b)), section 27I(7), section 27I(11), section 27L, or section 27M has a right of appeal to a District Court under section 66.