A conference occurred in the AAT on Monday 3 December. There is to be a conciliation conference on 1 April 2019. The date may be propitious …
About the only substantive material of interest to readers is that I obtained access to the letter sent by the CASA decision-maker seeking supposedly independent specialist advice. The content of the letter confirms for me that CASA has either forgotten or has decided simply to ignore what the AAT said in the Bolton matter. My guess is that Avmed simply chooses to ignore what the AAT said. Not for Avmed the mere bagatelle of doing things in an objective, disinterested way.
Before setting out extracts of the letter from Avmed supposedly seeking independent specialist advice, it’s worth reviewing what the AAT said in the Bolton matter, and why. The decision (here:
https://www.austlii.edu.au/cgi-bin/v.../2013/941.html ) says, at paragraph 24:
Despite the fact that the statement [of erstwhile PMO Dr Navathe] does contain the declaration of duty required by the Guidelines [for Persons Giving Expert and Opinion Evidence] it could not be plainer that Dr Navathe is an advocate for his own decision. I do not propose to have any regard to his opinions. For the future I would trust that CASA’s Legal Branch would exercise independent judgement in deciding what witnesses ought be relied upon and the content of their statements. They ought, obviously enough, be confined to matters that are relevant and witnesses ought be those who can truly provide an independent opinion.
It didn’t end there. The AAT went on to say, at 25:
It is not known what documentary material was provided to [the specialist] nor is it known what was conveyed to him by Dr Navathe in the conversation on 1 November 2013. Moreover, it is highly irregular that one expert witness, who is as well the primary decision-maker, was apparently briefing another expert witness in terms not disclosed. The danger of such a practice ought to have been evident. The vice is merely compounded by the failure to make clear what information was conveyed.
I find it breathtaking that the fundamental concepts underlying the AAT’s reprimands were either not obvious to Avmed and its legal advisors or simply disregarded by them in conducting the Bolton matter. At this point I tend and want to believe it was just the arrogance of Avmed in the face of legal advice to the contrary.
The underlying reason for those reprimands from Deputy President Hack SC of the AAT is that people who provide expert evidence are supposed to be independent of and disinterested in the subject matter of the decision under review. Experts are supposed to be provided with objective facts on the basis of which the experts express an objective and unbiased opinion. Dr Navathe was evidently an advocate for his own decision. Thus he was evidently not independent and the AAT therefore did not have any regard for his opinions. Further, Dr Navathe took it upon himself to engage in the “highly irregular” practice of briefing the expert in terms undisclosed.
So fast forward to my matter. As I’ve previously posted, the decision maker in my matter is Dr Sharma. Dr Sharma provided a statement to the AAT in advance of the stay hearing. That statement includes the declaration of duty required by the Guidelines. And see if you can guess if Dr Sharma’s statement was advocating for or against his own decision.
Dr Sharma wrote to a specialist on 31 October 2018, seeking a medical opinion. I have extracted key parts of the letter below (and continue to be prepared to make entire copies available to anyone on request if someone wants to post them in this thread). I will leave others to assess whether this constitutes a disinterested request for an independent expert’s opinion based on the provision of facts to the expert:
OPINION SOUGHT
CASA holds ongoing certification concerns in view of the endovascular intervention for Mr McKenzie’s medical condition, the specified risks and probabilities outlined by Dr Mews and in the absence of evidence of stability of the ONYX procedure. [My notes: I again note Dr Mews’ opinions of the risks and probabilities are implicitly taken as evidence, but his opinion (and that of Dr Lalloo) as to the success of the procedure is implicitly dismissed as no evidence. Further, there is no causal connection with CASA’s concerns and my compliance or otherwise with the class 2 medical standard. CASA’s concerns are irrelevant to – or at least should be irrelevant to – the expert.]
Considering that Mr McKenzie is now only some 2 months post procedure it is also of concern as to the potential procedure-related risks viz. permanent neurologic morbidity or failure of the procedure requiring re-treatment, and the likely risks due to the medical condition itself (haemorrhage, venous congestion/intracranial hypertension, ischaemic neurological deficit or seizure). [My notes: Again, there is no causal connection with CASA’s concerns and my compliance or otherwise with the class 2 medical standard. CASA’s concerns are irrelevant. The word “only” is value-laden, as is the phrase “likely risks”. These are matters about which the expert is supposed to form an independent view.]
Mr McKenzie’s present proceedings before the Tribunal seek to review the suspension decision and potentially the need to provide further evidence as to his medical condition. [My notes: The assertion that I have a “medical condition” is merely that. It’s supposed to be up to the expert to express an independent view as to whether diagnosis X on Y date followed by procedure A on B date results in any ongoing issue months later.] He contends that the suspension is unreasonable since he has been medically fit during the 32 years of flying before the diagnosis of a pre-existing medical condition and that the recent “successful” medical procedure has reduced whatever risks arose from the DVAF. [My notes: My contentions are irrelevant to the specialist, or at least they should be. In any event, it was Drs Mews and Lalloo who expressed the opinion that the procedure was “successful”, that I am not a risk of incapacitation and that I meet the class 2 standard for day VFR.]
CASA considers such a submission to be untenable in that the issue is whether or not Mr McKenzie presently meets the Class 2 medical standard in all respects. [My notes: At least CASA got one thing right: there is only one issue. But the point is that all the other fluff is unnecessary and irrelevant to the specialist, or at least it should be.] Provided at Annex 2 are [sic] a list of identified studies of potential relevance to the matters under consideration. [My notes: More on the list later, but here you see one of the clearest manifestations of Avmed’s complete arrogance or complete misunderstanding of how independent experts are supposed to be briefed. They are not supposed to be spoon fed the decision-maker’s inexpert and selectively chosen and quoted studies that just happen to support the decision-maker’s own decision. I am completely astonished that CASA continues to do this, in the wake of the Bolton decision.]
CASA seeks your opinion (including supporting references) with respect to the following: … [There follows a list of mostly leading questions. My favourite is this one: “Do you agree with Dr Mews[sic] initial assessment of a 40% annualised malignant behaviour risk prior to treatment.” That’s not, in fact, what Dr Mews said. It’s Avmed spin.]
The ‘list’ is headed “Evidence elsewhere”.
The most breathtakingly inappropriate aspect of the list is not that it’s there at all (an independent expert is supposed already to have access to reference material relevant to their expertise, based on their own judgment, otherwise they aren’t experts); it’s not so much that the list is selective; and it’s not even so much that it is mostly selective in favour of material in support of the decision-maker’s decision, when the decision-maker is briefing the ‘independent’ expert. I get it now that Avmed just blithely operates in a way that is in my view biased and intellectually-dishonest.
The most breathtakingly inappropriate aspect of the selective and selectively quoted material is that there is emphasis added by Avmed! That is, Avmed has gone through and underlined and italicised text that is not underlined or italicised in the original source documents. Presumably this is so the “independent” expert can “independently” come to the view that the underlined and italicised text in the material selectively chosen and quoted by the non-expert decision-maker who happens to be briefing the “independent” expert is – surprise, surprise – specifically relevant to and – surprise, surprise – supportive of the decision-maker’s decision.
My favourite selectively quoted text with underlining and italics in Dr Sharma’s letter to the expert that is not underlined or italicised in the original text of the source document is this:
Even lesions apparently cured with embolic agents have been shown to recanalize, including potentially catastrophic bleeding. Hence, even apparently obliterated lesions with transarterial embolization should be followed with late confirmatory angiogram, after a few months, to confirm effective cure.
You got that, “independent” expert? The non-independent non-specialist decision-maker wants you to independently form the view that the text selectively quoted and emphasised is specifically relevant to your “independent” opinion.
Why is that my favourite? I have now undergone a “late confirmatory angiogram, after a few months, to confirm effective cure”. The intravenous digital subtraction angiogram I underwent on 30 November confirmed effective cure of the DAVF by the procedure I underwent on 23 August. By my maths, that’s a few months. I’m advised that intravenous digital subtraction angiogram is the ‘gold standard’ scan to confirm ongoing success in cases like mine. However, I have no confidence that Avmed will consider the results of that scan (or the results of the dynamic CTA scan from 6 November) in an objective way, even assuming Avmed had expertise to do so.