Unfortunately, there is insufficient governance around Avmed, Sandy.
There is an interesting, relatively-recent decision of the AAT which highlights, again, all which is wrong in Avmed and why it has become a force inimical to aviation safety. Fortunately the Deputy President in the matter saw through Avmed’s usual smoke and mirrors created by the shibboleth of the safety of air navigation.
As background to the insufficient governance point, I note an AAT matter challenging a decision of erstwhile PMO, Pooshan Navathe, from 2013 in which the Tribunal said:
Despite the fact that [Navathe’s] statement 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.
The Tribunal’s trust was misplaced.
One recent example of CASA once again trying to trot out the Avmed decision-maker to give evidence as to why their decision was the correct and preferable one is Bush and Civil Aviation Safety Authority [2022] AATA 2821 (26 August 2022), in which the Tribunal said:
Dr Beresford, then, went [on in her statement] to deal with whether the Applicant met the Class 2 Medical Standard. This part of her statement is not helpful, as Dr Beresford, again, explains why she reached her conclusion in the reviewable decision. For the reasons outlined above, the Tribunal does not place any weight on this part of the statement.
Sounds very familiar, doesn’t it. And CASA has tried the same trick in other matters post-Bolton, despite what it was told in Bolton.
Having been sent an unequivocal message from the Tribunal in Bolton – which message the Tribunal should not have had to send in the first place - that the Avmed decision-maker is not truly independent and, therefore, is not qualified to give expert opinion on the substance of the decision in question, CASA ignored the Tribunal. CASA continued, and continues, to trot out Avmed people to advocate for their own decisions because – well – they know best.
Of course the decision-maker’s decision is the correct and preferable one. Just ask them. Everything CASA does is reasonable and appropriate. Just ask them.
Avmed’s modus operandi is to do whatever it likes, comfortable in the belief that few victims can handle the cost and stress of taking them to external review and, in the few cases in which they are taken on, Avmed will scaremonger its way into eventually convincing the Tribunal to accept some plausible approach or opinion put to it, which CASA then seizes on as a precedent for future Tribunal matters. (I use the word “plausible” in its correct sense: “superficially fair, reasonable, or valuable but often specious”.) If the Tribunal accepts some approach or opinion put to it by Avmed, that’s treated as precedent by Avmed. If the Tribunal tells Avmed something it doesn’t want to hear – like they’re not qualified to give expert opinion evidence about the substance of their own decisions - that’s an inconvenience to be ignored. Avmed just tries it again, at the next opportunity.
If there were any proper governance around them, Navathe wouldn’t have been allowed by CASA to advocate for his own decision in Bolton in the first place. Nor would Navathe have been allowed to do the other appalling thing which was identified by the Tribunal in that matter:
Finally, CASA relied upon evidence (including a report of 4 November 2013) of Dr Ernest Somerville, a consultant neurologist. I have already made mention of the reference in Dr Somerville's report to a document from the Proserpine Hospital which is not in evidence in the proceedings. The failure to comply with the Guidelines is exemplified by this passage from Dr Somerville's report:
The following opinion is provided in response to your letter of 30 October 2013 and telephone conversation with Dr Pooshan Navathe on 1 November 2013. Information about Mr Walker's [sic] medical condition is limited to the documents provided with your letter of 30 October 2013.
It is not known what documentary material was provided to Dr Somerville 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.
Nor would Dr Beresford have been allowed to put in a statement to the Tribunal in the Bush matter, to the extent the statement contained her opinions about the substance of her decision under review.
These are public officials being allowed to do things which they and CASA have been told, time-and time-again, not to do. And they’re doing it with the assistance of CASA lawyers who then try to defend it in the Tribunal. This is a manifestation of an organisation with insufficient corporate competence and insufficient corporate integrity. Plain and simple.
I’m not suggesting the people involved are dishonest. This isn’t a matter of people lying. This is a matter of people either not understanding their duties as public officials or understanding them but choosing to ignore them.
As to other plausible approaches and opinions tried on by Avmed, it was relieving to see that the Tribunal in the Bush matter saw through the mystique of aviation that has been used to bamboozle so often in the past:
The Tribunal was presented with some evidence about the annualised risk of incapacitation. In particular, reference was made to the 1% and 2% rule. It needs to be emphasised, at the outset, that neither the Act nor the Regulations prescribe such a rule. As was emphasised in Mulholland, and which is accepted by the Tribunal, the task of the decision-maker is to determine what is likely to endanger the safety of air navigation.
Having noted this important starting point, the Tribunal also accepts, as noted in Collins and Civil Aviation Safety Authority [2017] AATA 2564 (Collins), that “the internationally accepted guideline can play a useful, if not critical, exercise in assessing risk and in ensuring consistency in decision making concerning air navigation safety” – at [76].
The 1% rule is set out and explained in the International Civil Aviation Organisation Manual of Civil Aviation Medicine. This Organisation is a United Nations agency established in 1944 which governs the Convention on International Civil Aviation (the Chicago Convention), of which, Australia is a Member State.
Further, pursuant to s 11 of the Act, CASA must perform its functions in a manner consistent with the obligations of the Commonwealth under the Chicago Convention.
As noted in Collins (at [74]), CASA allows for a 2% annualised risk of incapacitation for Class 2 medical certificates because of the different profile of flying, namely, private and non-commercial.
In short, neither the 1% nor 2% rule have their foundations in a specific provision in either the Act or Regulations. However, pursuant to Article 37 of the Chicago Convention which requires Member States to collaborate in securing the highest degree of uniformity in regulations, standards and procedures, the 1% rule should be regarded as a sound starting point or guide when measuring risk.
However, as will be discussed below, the measurement of risk is not, of itself, a purely arithmetic and clinically objective task. It may be that, with common ailments that afflict many members of the community, learned research has been undertaken that would allow the calculation of potential risk with a high degree of precision. In comparison, there are other ailments that are rare, and the condition afflicting persons varies, and is sometimes, idiosyncratic. In such cases, the development of an annualised risk assessment of incapacitation, becomes more problematic and less precise.
That last paragraph is a merciful voice of reason.
But bear in mind who writes the ICAO “Manual of Civil Aviation Medicine”. What would be the purposes of the “research” for which CASA uses or discloses our medical information? Would its results ever likely be construed as suggesting that Avmed’s behaviours are a harmful overreaction to the objective risks? Methinks not. Methinks the results go into an echo chamber of Avmed people justifying their existence.
These already-available research results, conducted by people without a conflict of interest, suggest Avmed’s doing some harm to aviation safety:
Results: A total of 3765 pilots were included in the analysis. There were 56.1% of pilots (n = 2111) who reported a history of healthcare avoidance behavior due fear for losing their aeromedical certificate. There were 45.7% who sought informal medical care (n = 1721) and 26.8% who misrepresented/withheld information on a written healthcare questionnaire for fear of aeromedical certificate loss (n = 994).
Conclusions: Aircraft pilots may participate in healthcare avoidance behavior related to fear of losing their aeromedical certificate. Further work is necessary to address pilot healthcare avoidance.
Medical bureaucrats are the last people who should have any involvement in that work.
(The good news is that in Bush - as with many challenges to CASA Avmed decisions in the last 15 or so years – Avmed’s decision was set aside and Bush was issued with a Class 2 medical certificate. There were some conditions imposed to deal with the awful risks to the safety of air navigation pressed by CASA. Presumably the information provided by Bush in compliance with those conditions will be used or disclosed by CASA for the purposes of “research”.)