Avmed delays in granting medical certificates - is our old certificate kept alive?

[Clinton McKenzie]

CASA advised me, yesterday, of its view that CASR 11.140 does not apply to medical certificates. I will quote CASA’s entire response later in this post.

My view is that CASA’s reasoning is arrant nonsense leading to a patently unreasonable outcome. As an act of purest optimism, I have explained my reasons and invited CASA to think a bit more about it and confirm whether it sticks to its view. Here is what I sent to CASA this morning:

It appears to me that CASA has started from the premise that the application of CASR 11.140 to medical certificates would be inconvenient to CASA and therefore the outcome should be that CASR 11.140 should not apply to medical certificates. Then follows some unconvincing reasoning that does not support the pre-determined conclusion. That’s not how the statutory interpretation task is supposed to be completed.

CASA appears to have construed its view as to the effects of (or, more accurately, CASA’s views as to the lack of the effects of) a medical certificate as somehow restricting the scope of the time-limited authorisations to which CASR 11.140 applies. You’ll correct me if I’m wrong, but I summarise CASA’s reasoning to be:

1. A medical certificate is a “time-limited authorisation” as defined for Part 11 of CASR.
2. However, and even though CASR 11.140 is in Subpart 11.E headed “Time-limited authorisations”, CASR 11.135 states that the Subpart “sets out provisions relating to time-limited authorisations” and medical certificates are “time-limited authorisations”, CASR 11.140 does not apply to medical certificates because, in CASA’s view:

• CASR 11.140 only applies to time-limited authorisations which confer privileges or authorise the holder to carry out functions or duties; and
• a medical certificate does not confer any privileges or authorise the holder to carry out any functions or duties.

As a matter of basic statutory interpretation, CASA is construing part of a provision which:

• limits the timing of the submission to CASA of the applications for a time-limited authorisation to which CASR 11.140 can apply, and
• further limits those applications to ones for a new authorisation that will do the same thing as the old authorisation,

as somehow excluding a whole class of time-limited authorisations from the scope of CASR 11.140.

Not only does that produce a patently unreasonable outcome, it is wrong even if CASA’s view as to the effect of medical certificates is accepted.

CASR 11.140 says:

11.140

Continuation of authorisation until application decided

(1) This regulation applies in relation to a time‑limited authorisation (the old authorisation) if:

(a) at least:

(i) in the case of an authorisation held by a corporation, 90 days; or

(ii) in any other case, 21 days;

before the time when the old authorisation would otherwise cease, its holder applies to CASA for the issue of a new time‑limited authorisation that confers the same privileges, or authorises the holder to carry out the same functions or duties, as the old authorisation; and

(b) at the time when the old authorisation would otherwise cease, CASA has not made a decision on the application.

The policy of CASR 11.140(1)(a) is evident and reasonable. If an applicant has applied sufficiently in advance of the expiry of their old time-limited authorisation and the applicant is not applying for anything different than before, and for whatever reason CASA does not make a decision on the application before the old authorisation would expire on its face, the applicant shouldn’t be penalised.

The policy of the ‘sameness’ criterion in CASR 11.140(1)(a) is evident and reasonable. If the applicant is applying for a time-limited authorisation that would confer different privileges or authorisations than are conferred or authorised by the holder’s old time-limited authorisation, it is reasonable for CASA to take more time to assess the application and the holder’s old time-limited authorisation can be left to expire because the applicant has chosen to apply for different privileges or authorisations than the applicant previously had.

Now let us assume that a medical certificate confers no privileges and authorises nothing, as CASA says. It follows, from that assumption, that when the holder of a time-limited authorisation which happens to be a medical certificate applies for a new one, the applicant is the holder of a time-limited authorisation that confers no privileges and authorises nothing, and the applicant is applying for a new-time limited authorisation that confers no privileges and authorises nothing. Those are the same privileges and authorities: none. The sameness criterion in CASR 11.140(1)(a) is therefore satisfied.

(As I recall, we went through similar nonsense in relation to the interpretation of the definition of a ‘cost-sharing’ flight, and CASA finally conceded that if the PIC pays the entirety of the direct costs of a flight, the flight satisfies the ‘cost-sharing’ flight criterion that the PIC pays an amount of the direct costs of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided between all persons on board. Just as payment of the entirety of the direct costs of a flight is payment of an amount that “is at least equal to” an amount in terms of that criterion, an old time-limited authorisation which – according to CASA – confers no privileges and authorises nothing is the same as a new time-limited authorisation which confers no privileges and authorises nothing.)

CASA has construed the sameness criterion as having the effect of excluding a whole class of certificates from the operation of Subpart 11E of CASR, even though those certificates fall within the definition of “time-limited authorisation” and Subpart 11E deals with, and only with, time-limited authorisations. According to CASA, the legislature went to the trouble of defining “time-limited authorisation” in Part 11 so as to capture medical certificates but then deliberately excluded medical certificates entirely from the benefit of the operation of Subpart 11E - without saying that in clear words – so that the holders of some kinds of time-limited authorisations but not others would be protected from the capricious consequences of CASA delays over which the applicant has no control. The intent of the legislature was, according to CASA, not to afford that protection in relation to the class of time-limited authorisations called medical certificates, even though the consequences of delays are particularly profound for the holders of medical certificates. I call that nonsense leading to a patently unreasonable outcome.

The practical consequences of CASA delays in processing medical certificate applications are profound for the applicants. CASA knows how much stress and costs those delays cause. To construe a provision - whose evident policy is to provide applicants some protection from the capricious consequences of CASA delays over which the applicant has no control – as providing no protection in the most common circumstances in which applicants are exposed to those capricious consequences, is the kind of behaviour which contributes to CASA’s poor reputation.

I anticipate some sophistry about the safety of air navigation supporting CASA’s interpretation. The reason it would be sophistry is that if there’s some risk to the safety of air navigation in CASR 11.140 applying to medical certificates, there’s some risk to the safety of air navigation in CASR 11.140 applying to any authorisations at all, especially the ones to which CASA says CASR 11.140 does apply. On CASA’s own interpretation, CASR 11.140 can keep alive time-limited authorisations which in themselves authorise the holder to continue to do things.

I therefore request that you confirm that CASA’s position continues to be that CASR 11.140 has no operation in relation to medical certificates.

Further, are you able to nominate a certificate, other than a medical certificate, which falls within the scope of paragraph (c) of the definition of “authorisation” and definition of “time-limited authorisation” in CASR 11.015, and to which in CASA’s view CASR 11.140 does apply?

Regards

Clinton McKenzie

Assuming CASA sticks with its view, the practical problem for holders of medical certificates is that the only way in which to get an authoritative ruling on whether CASR 11.140 applies to medical certificates is for individuals to proceed on the basis that it does apply and challenge any enforcement action taken by CASA on the basis of CASA’s view that it does not apply. In effect, CASA would be taking enforcement action on the basis that we’re flying without a medical certificate while CASA delays making a decision on our application for a new medical certificate.

That’s an enormous risk for individuals to take, because of the damage that can be done to the individual by CASA on the way to getting an authoritative ruling. The high dollar cost, high stress cost and probably licence suspension while CASA pulls every trick in the book to delay a resolution, would make any victory pyrrhic.

Of course, the solution to all this would be for Avmed to have the corporate competence to make timely decisions without harmful overreactions to the objective risks, thus rendering the application of CASR 11.140 to medical certificates academic. And pigs might fly (with a medical certificate).

Here is the entirety of what I was sent by CASA yesterday:

Question 1: Does CASA consider a medical certificate capable of being granted under CASR 67.180(2) to be an "authorisation" within the scope of the definition of that term, and in turn a "time-limited authorisation" within the scope of the definition of that term, in CASR 11.015?

Response 1: Yes, a medical certificate is an authorisation under Part 11, 11.015 Definitions Civil Aviation Safety Regulations 1998 (CASR) defines authorisation to include: (c) a certificate capable of being granted to a person under these Regulations. As an authorisation with an expiry date, a medical certificate falls within the definition of time-limited authorisation.

Question 2: If the answer to question 1 is yes, does CASA consider that if the holder of a medical certificate issued under regulation 67.180(2) of CASR applies for a new medical certificate at least 21 days before the old certificate is expressed to expire, and the circumstances of the application satisfy the criteria in CASR 11.140(2), the old certificate will, as a consequence of the operation of CASR 11.140(3) but subject to CASR 11.140(4), remain in force until CASA makes a decision on the application and, if the decision is to grant a new certificate, until the new certificate comes into force?

Response 2: No. Regulation 11.140 CASR does not apply to medical certificates.

CASR 11.140(1) states that this regulation applies in relation to a time-limited authorisation (the old authorisation) if at least 21 days “before the time when the old authorisation would otherwise cease, its holder applies to CASA for the issue of a new time-limited authorisation that confers the same privileges, or authorises the holder to carry out the same functions or duties, as the old authorisation” and “at the time when the old authorisation would otherwise cease, CASA has not made a decision on the application.”

CASR 11.140 does not apply to all types of time-limited authorisations. It only applies to authorisations that confer privileges or authorise holders to carry out functions or duties. A medical certificate does not of itself, enable the holder to carry out the holder to exercise privileges or carry out functions or duties under civil aviation legislation. A pilot is authorised to fly an aircraft by virtue of holding a pilot licence with appropriate endorsements and ratings. The pilot licence is subject to a number of limitations to the exercise of those privileges. Relevantly, the holder of a pilot licence is only authorised to exercise the privileges of the licence if the holder also holds a relevant current medical certificate (see CASR 61.405, 61.410 and 61.415).

Part 67 sets out the requirements for the issue of a medical certificate. The pilot must comply with the requirements of Part 67 to ensure that his or her medical certificate remains current.

Question 3: If the answer to question 2 is yes, does CASA agree that the effect of CASR 11.140(3) is to keep medical certificates (and the other authorisations to which CASR 11.140(3) applies) in force despite the date of expiry that happens to be expressed on the certificates?

Response 3: No. As noted above the relevant procedure is that in Part 67 not CASR 11.140.

Question 4: Does CASA agree that the circumstances of an application for a new medical certificate can satisfy the criteria in CASR 11.140(2), whether or not any individual CASA delegate is aware of or has turned his or her mind to the substance of the application?

Response 4: See previous answer.

Question 5: What does CASA consider to be the minimum period CASA may lawfully specify in an invitation, under a provision of Subpart 11.B as applied by CASR 11.145, for an applicant to make a submission or provide further information or a document pursuant to CASR 11.140(4)? For example, does CASA consider that CASA could lawfully specify a period of 24 hours, such that a medical certificate being kept in force by CASR 11.140(3) would cease to be in force 24 hours later if the applicant did not respond to the invitation within 24 hours?

Response 5:Not necessary to answer as CASR 11.140 does not apply to a medical certificate.