I’ll try to distil what I consider to be key lessons that may be of assistance to others.
As background I note that I have had more interactions with the medical system in just the last 18 months than in the entirety of the previous 56 years. In the previous 56 years my one or two yearly visits to a DAME were about it so far as interacting with doctors was concerned, aside from tonsils out at the age of 4, some guinea pig testing in the RAAF and some hearing issues as a consequence of noise exposure. Accordingly, it may be that all of the below is ‘durr-obvious’ and I’ve just been living in a different world than many others.
For example, when asked who “my GP” was, I’d say I didn’t have one - because I didn’t. But apparently everyone’s supposed to have their own GP. When I went to the specialist I was asked for my referral and I said “what’s that?” One of the more bizarre interactions I had was with a receptionist, to whom I finally said: “I wish to buy the expertise of the specialist you work for, in return for the payment of money. Is that possible?” The receptionist looked at me as if I were from another planet.
The other eye-opener has been the discovery of the extent to which pilot medical issues are now managed without Avmed’s knowledge. A related issue - probably causally connected with the first - is the extent of the open contempt that treating specialists and other experts have for Avmed.
Beware the “diagnosis”
This is the process through which a mere opinion magically transforms into an objective truth. Once diagnosed, you have a “condition” that has to be “managed”.
Despite the fact that the history of medical science and medical judgment is littered with research conclusions and diagnoses that turned out to be wrong, the current generation of medicos usually consider themselves to be the apotheosis of medical wisdom. And the medical ‘industry’ has a financial incentive to medicalise normal.
So be very careful about putting yourself in a situation in which you can be diagnosed with a “condition” which will provide Avmed with an excuse to intervene, intrude and destroy on the basis of its inexpert opinion. As joseph w said earlier: "MRIs/CAT scans/Angiograms/whatever will show up all sorts of wonderous things that we more than likely would have been blissfully unaware of until we dropped dead at age 98 - from something completely unrelated..."
A colleague was diagnosed with a condition about 6 years ago and Avmed intervened to destroy. The subsequent 6 years have demonstrated that the original diagnosis was wrong. But that is of no concern to Avmed.
As it turns out, I accepted the opinion of the specialist as to the existence of my DAVF. However, I have doubts about the correctness of the specialist’s opinion as to the classification of the severity of the DAVF. We’ll never know about the latter, because the former has been dealt with.
What we
do know is that Avmed considered the specialist’s opinions on both those issues to be objective truths, but then ignored opinions expressed about the success of procedure to deal with the DAVF. Avmed preferred, instead, to intervene on the basis of “speculative risks based on poor quality data taken from small number surveys that have no relevance when applied to a single case” and apply “arbitrary rules, based on pseudoscience from small case series”. Not my words, but those of someone with more medical expertise in his big toe than a bunch of glorified GPs in Avmed.
Avmed is now, in my view, a force inimical to aviation safety
I’ve explained why, throughout this thread. As I said earlier, Avmed seems to me to believe that it’s OK to spin the facts in whichever way puts a pilot in the worst light, that it’s OK to spin whatever data they can find to portray risks to be as high as they could possibly be portrayed when it’s convenient, that it’s OK to spoon feed a supposedly independent expert some selected studies and selectively emphasised passages from studies, and that the law is for others and not them. It’s OK in their minds because it’s done for the noble cause of the safety of air navigation. It’s OK in their minds because it’s a “conservative approach” and “what the public would expect”.
There is no special expertise required to do that. It’s easy.
What seems to have happened is that Avmed has arrogated itself to a position of quasi-specialisation, simply because it has the power to issue and not issue medical certificates. Avmed seems to be suffering the delusion that having the power to certify somehow confers on Avmed some expertise it doesn’t have.
An analogous situation is the practical dictation by CASA of the content of an AOC holder’s Operations Manual on the one hand and the denial of liability for the consequences of compliance with that Manual on the other. Some folklore-propagating FOI says you’re not going to get your AOC unless your Operations Manual contains X but, by the way, you the AOC holder are entirely liable for the consequences of compliance with X.
Avmed practically dictates the “management” of a pilot’s “conditions” because the pilot isn’t going to get his or her certificate unless Avmed gets its way (or you have the time and money to take them on in the AAT). But this is often in the face of the opinion of the treating doctors and specialists who bear liability for their patient’s health and treatment. This is one of the reasons for Avmed being held in contempt.
It’s got to the point where some pilots are simply too scared to seek medical assistance ‘when in doubt’, or to disclose potentially safety-relevant medical issues to Avmed, for fear of consequential overreaction by Avmed.
Avmed’s response is ever-increasing procedural requirements during periodic DAME examinations that manifest a complete lack of trust of pilots, which results in a reciprocal lack of trust in Avmed. You don’t trust me any more? OK then, I don’t trust you any more.
Subject to the next lesson learnt, you should take Avmed on, every time
Every interaction I have had with Avmed since 2015 has involved unlawful behaviour on Avmed’s behalf. Every interaction. This is not my opinion: it has been conceded by CASA.
It started with the printing of “for CASA audit” as a purported “restriction” on my medical certificate. I had to pull them up twice - once in 2015 and then in 2017 when Avmed issued my medical certificate with that bull**** printed on it - to have it removed. As I said in my submission to the review of medical certification, medical certificates are not a blank canvass for use by Avmed to express its creative theories about how to save the world.
And as it turned out, this assertion by Avmed in its most recent decision was wrong not only as a matter of the laws of physics but also as a matter of man-made law: “Please be advised, CASA is unable to make a risk assessment for your fitness to return to flying until 12 months has elapsed following your embolisation procedure.”
It appears to me that CASA does not have the corporate integrity to ensure that Avmed understands that even Avmed is obliged to comply with the law, and ensure that Avmed understands that the medical certification system is defined and constrained by the law, not Avmed’s bright ideas. It therefore seems to me that it is left to us to make Avmed comply with the law. If not us, who?
Avmed doesn’t care if its intervention kills you
Taking Avmed on is costly and stressful. And Avmed doesn’t care if taking them on kills you financially, mentally or, ultimately, physically. (I am here reminded of Mr Carter’s Orwellian assertion, during the stay hearing, that: “CASA has a duty to protect Mr McKenzie’s safety, too”. That duty apparently extends to the dictation of scans that involve a risk of death. As I observed earlier, Avmed will destroy the village to save the village.)
This is a manifestation of the ‘Bull**** Asymmetry’:
The amount of energy needed to refute bull**** is an order of magnitude bigger than to produce it.
It’s easy for Avmed to intervene on the basis of “speculative risks based on poor quality data taken from small number surveys that have no relevance when applied to a single case” and apply “arbitrary rules, based on pseudoscience from small case series”. The cost and stress of refuting that bull**** is orders of magnitude higher than the energy it took Avmed to produce it.
I feel the least healthy I have in my life, primarily as a consequence of the stress of dealing with Avmed’s bull****. And I haven’t much change left out of $10,000 spent on specialist reports and legal fees, even though we didn’t get to a substantive hearing in the AAT.
There’s an irony here: My ‘day job’ is administrative law and, accordingly, AAT and other other administrative law proceedings are mundane for me. I also have some insight into the detail of the aviation law. But it is
because of my expertise and experience that I find dealing with Avmed’s bull**** so stressful. It’s like entering a parallel universe in which objective evidence, objective risk, disinterested decision-making and legal principle go out the window, simply through invocation of “the safety of air navigation”.
However, I don’t see what other choice we have, other than to fight them.
A special mention: Mr Anthony Carter
I’ve thought long and hard about how best to express my views about Mr Carter’s behaviour during this matter. Given that I understand he is a lawyer, I decided that the best way to express my views was through a hypothetical situation in which Mr Carter was working in my legal team and I was giving him some professional guidance. Here’s what I’d say, in those hypothetical circumstances:
AAT proceedings are inquisitorial, not adversarial. It’s not commercial litigation in which you are trying to use leverage and technicalities to ‘win’. AAT proceedings are not about ‘winning’ and ‘losing’.
You have a duty to
protect the AAT from opinions based on “speculative risks based on poor quality data taken from small number surveys that have no relevance when applied to a single case”, not ‘defend’ those opinions.
You have a duty to
protect the AAT from opinions based on “arbitrary rules, based on pseudoscience from small case series”, not ‘defend’ those opinions.
If you do not know why Deputy President Hack SC said this in the Bolton matter (
Bolton and Civil Aviation Safety Authority [2013] AATA 941 (23 December 2013)), we’ll need to arrange for you to do some remedial professional development:
Dr Navathe’s witness statement concluded [in terms quoted by the AAT]. Despite the fact that the statement does contain the declaration of duty required by the Guidelines 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 might be worth you refreshing yourself on the reasons of the AAT and Federal Court in
Re Medtest and Minister for Health and Ageing [2002] AATA 566; (2002) 70 ALD 580,
Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551,
Re Tompkins and Civil Aviation Safety Authority [2006] AATA 591; (2006) 91 ALD 492,
Re Transglobal Airways Corporation and Civil Aviation Safety Authority [2010] AATA 68; (2010) 113 ALD 218.
Although the above cases are about stay decisions, the overarching reasons are about ensuring the AAT’s ultimate order in a matter is effective. If the AAT has power to grant stays that have the positive effect of keeping an air operator’s certificate in force after it expired - as happened in a couple of the matters I’ve cited above - the AAT has power to grant stays that have the positive effect of keeping a medical certificate in force after it expired.
The effect of the position pressed by you in Mr McKenzie’s matter is that the holder of a suspended medical certificate is apparently deprived entirely of the right to any beneficial order from the AAT, simply because the procedure giving rise to the suspension decision randomly happened 5 months before the expiry date of the certificate, leaving insufficient time for the AAT to review the decision. It is in my view an absurdity and a perversion of the underlying policy of the AAT’s existence to conclude that an Applicant’s substantive rights and the AAT’s powers in aviation medical certification matters depend on the random coincidence that a reviewable decision happens to be made sufficiently in advance of a certificate’s expiry. There is no causal connection between the occurrence of potentially medically significant events and the date of expiry of a certificate.
I’d like you to consider the underlying reasons for the decisions in the AAT and Federal Court matters I’ve cited, extrapolate those reasons to medical certification matters, in the light of the underlying policy of the AAT’s existence, then come and discuss your views on the issue with me.
Finally, I understand from Mr McKenzie’s lawyer that he perceived that you and Dr Sharma “gloated”, during the conference, about Mr McKenzie’s concession that he undergo an annual scan of a kind that (you assume) is intrusive. If Mr McKenzie’s lawyer’s perception of your behaviour is accurate, I note that you (and Dr Sharma) are supposed to be disinterested and objective. “Gloating” about something disadvantageous to a certificate holder strikes me as manifesting an emotional and therefore inappropriate engagement with the substance of the matter. I don’t think it’s appropriate for a supposedly disinterested legal advisor and a supposedly disinterested administrative decision-maker to gloat about someone having to undergo a scan that entails a risk of death. The necessity and timing of scans should be decided on the basis of the opinion of independent, disinterested experts, taking into account the potential risks and benefits of those scans, not on the basis of the opinion of non-experts with an emotional engagement in the matter. However, I stress that Mr McKenzie’s lawyer may have misperceived your and Dr Sharma’s actions in the circumstances. Finally, and though not a legal matter, it might be worth you and Dr Sharma doing some googling about the scan in question. You might find that your assumption about the nature of the scan in question is inaccurate - hardly surprising, given that neither of you is an expert.
Epilogue
I note this from another thread on PPRuNe:
Meanwhile CASA's CAAP 155-1, Aerobatics, still has a dangerously incorrect and unhelpful description of Va and furthermore is generally irrelevant after Part 61.
I also note that a friend recently reported to me that an FOI who ‘sat in’ on an IFR rating renewal chipped the pilot for not setting 25/25 for climb after take off in the piston twin he was flying.
It is bad enough that millions continue to be wasted on the never-ending aviation regulatory ‘reform’ dog’s breakfast that produces ever more complexity with little-to-no positively causal improvement in aviation safety in return for the cost. But millions are also now wasted on the peddling of dangerous operational folklore as well as what I consider to be the safety-inimical activities of Avmed.
It’s broken. I hope against hope that it won’t take a disaster for it to be fixed.