Avmed delays in granting medical certificates - is our old certificate kept alive?
Thread Starter
I sent an email to Jonathan Aleck today, in the following terms, after a discussion on Monday (28 Aug 23). The content is a good SITREP. (I note that I said to Jonathan, in advance of our discussion, that I would not treat the content as confidential, and the discussion proceeded on that basis.)
Hi again, Jonathan
Thanks for the discussion on Monday afternoon (28 August 23). My understanding is that you have been asked by the CEO/DAS for advice on the question whether CASR 11.140 applies to medical certificates. I look forward to being informed by the CEO/DAS of CASA’s position after the CEO/DAS has had an opportunity to consider your advice.
In the interim, are you able to explain the ‘status’ of the position stated by CASA’s ‘Regulatory Guidance’ staff? We are apparently now in circumstances in which the CEO/DAS could conceivably settle on a position different than that stated categorically (twice) by ‘Regulatory Guidance’ staff in response to my question and follow-up. Do ‘Regulatory Guidance’ staff communicate with CASA’s authority?
Apart from my view that I consider the position expressed by CASA’s ‘Regulatory Guidance’ staff to be dubious as a matter of statutory interpretation, I wrote to the CEO/DAS about CASR 11.140 because I’m mindful of reports that CASA told the ATSB, in the course of the latter’s investigation of the evolution of the OLS at Essendon, that written confirmation given to the operators of Essendon by a CASA officer as to the interpretation of the applicable rules was wrong and had no legal validity. I hasten to add that I realise this is just one (hearsay) side of what will almost certainly be a story with at least three sides. Nonetheless, I’m disconcerted by any prospect of CASA subsequently resiling from the substance of written communications, on serious matters involving the interpretation of civil aviation safety rules, sent by CASA staff in response to questions about those matters. That’s why I said, in my email to you of 25 August 23, that: “I’m surprised that the DAS’s/CEO’s response [to my letter of 7 August 23] was anything other than to confirm what the ‘Guidance Centre’ has already told me.”
In any event, I reiterate my thanks for the discussion and that I look forward to being informed by the CEO/DAS of CASA’s position after the CEO/DAS has had an opportunity to consider your advice.
Regards
Thanks for the discussion on Monday afternoon (28 August 23). My understanding is that you have been asked by the CEO/DAS for advice on the question whether CASR 11.140 applies to medical certificates. I look forward to being informed by the CEO/DAS of CASA’s position after the CEO/DAS has had an opportunity to consider your advice.
In the interim, are you able to explain the ‘status’ of the position stated by CASA’s ‘Regulatory Guidance’ staff? We are apparently now in circumstances in which the CEO/DAS could conceivably settle on a position different than that stated categorically (twice) by ‘Regulatory Guidance’ staff in response to my question and follow-up. Do ‘Regulatory Guidance’ staff communicate with CASA’s authority?
Apart from my view that I consider the position expressed by CASA’s ‘Regulatory Guidance’ staff to be dubious as a matter of statutory interpretation, I wrote to the CEO/DAS about CASR 11.140 because I’m mindful of reports that CASA told the ATSB, in the course of the latter’s investigation of the evolution of the OLS at Essendon, that written confirmation given to the operators of Essendon by a CASA officer as to the interpretation of the applicable rules was wrong and had no legal validity. I hasten to add that I realise this is just one (hearsay) side of what will almost certainly be a story with at least three sides. Nonetheless, I’m disconcerted by any prospect of CASA subsequently resiling from the substance of written communications, on serious matters involving the interpretation of civil aviation safety rules, sent by CASA staff in response to questions about those matters. That’s why I said, in my email to you of 25 August 23, that: “I’m surprised that the DAS’s/CEO’s response [to my letter of 7 August 23] was anything other than to confirm what the ‘Guidance Centre’ has already told me.”
In any event, I reiterate my thanks for the discussion and that I look forward to being informed by the CEO/DAS of CASA’s position after the CEO/DAS has had an opportunity to consider your advice.
Regards
Thread Starter
Response from Jonathan Aleck, of yesterday (Wed 20 Sep 23):
CASA’s current formal position is therefore that:
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:
(a) CASR 11.140 only applies to time-limited authorisations which confer privileges or authorise the holder to carry out functions or duties; and
(b) a medical certificate does not confer any privileges or authorise the holder to carry out any functions or duties.
CASA has ‘grabbed the tiger by the tail’. My response indicated that I looked forward to the question being tested. I'll 'keep my ear to the ground' for potential circumstances in which an authoritative interpretation might be pursued.
My view continues to be that CASA’s interpretation is based on two complete fictions, conjured up to avoid the inconvenience to CASA of CASR 11.140 applying to all time-limited authorisations as defined. The first fiction is that the sameness criterion applicable to the new and old authorisations is also intended to exclude a whole class of time-limited authorisations from the benefit of the operation of CASR 11.140; the second fiction is that a medical certificate does not confer any privileges or authorise the holder to carry out any functions or duties and that the word “itself” can somehow be read into CASR 11.140. Putting words that aren’t there into legislation is an interpretive ‘no no’.
We all know the direct consequences, upon the exercise of the privileges of our licences, of not having a medical certificate. If there were no consequences, we wouldn’t care about getting one or how long Avmed took in its solemn deliberations on the complexities of the almost endless aero-medically relevant conditions that are disasters waiting to happen. Erstwhile PMO Navathe put it this way: “A pilot’s licence goes on forever, but it is the medical certificate which enables the person to use the licence.” That statement was made in the context in which John O’Brien could not – as the AAT put it – “exercise the full privileges” of his ATPL, because of Avmed’s then-mediaeval approach to CVD and medical certification (to which approach the CVD zealots have been again allowed to return).
I’m also considering seeking legal advice from recognised independent and disinterested experts, and publishing the advice. I am naturally conflicted in the matter, because every interaction I have with Avmed involves unlawful behaviour or damaging overreach on its part. I would be astonished if CASA has external legal advice to support its categorical position on the interpretation of CASR 11.140 , but would be happy to stand corrected.
All of that said, there’s ultimately only one opinion that counts.
Meanwhile, I’ve yet to get answer from CASA as to what provision of CASR results in flight training certificates issued under Part 141 ceasing after a particular period, or gives CASA power to issue flight training certificates issued under Part 141 with limited duration. Those were given as an example of time-limited authorisations that are, in CASA’s opinion, certificates subject to CASR 11.140. I’ll ask again and put an update in the separate thread I started on the subject.
Hi, Clinton
I can confirm that the advice provided by the Guidance Delivery Centre remains CASA’s position on the matter and, having discussed this with the CEO/DAS, she is satisfied that the advice is correct. This too will be confirmed.
That said, and as we discussed, while the extension processes contemplated by CASR 11.140 may not apply in respect of medical certificates, there may well be scope to consider the basis on which medical certificates can be extended, and whether more flexible arrangements might be possible in many, if not necessary all, cases.
I apologise for the delay in getting back to you on this. I will get back to you again next week, however.
I can confirm that the advice provided by the Guidance Delivery Centre remains CASA’s position on the matter and, having discussed this with the CEO/DAS, she is satisfied that the advice is correct. This too will be confirmed.
That said, and as we discussed, while the extension processes contemplated by CASR 11.140 may not apply in respect of medical certificates, there may well be scope to consider the basis on which medical certificates can be extended, and whether more flexible arrangements might be possible in many, if not necessary all, cases.
I apologise for the delay in getting back to you on this. I will get back to you again next week, however.
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:
(a) CASR 11.140 only applies to time-limited authorisations which confer privileges or authorise the holder to carry out functions or duties; and
(b) a medical certificate does not confer any privileges or authorise the holder to carry out any functions or duties.
CASA has ‘grabbed the tiger by the tail’. My response indicated that I looked forward to the question being tested. I'll 'keep my ear to the ground' for potential circumstances in which an authoritative interpretation might be pursued.
My view continues to be that CASA’s interpretation is based on two complete fictions, conjured up to avoid the inconvenience to CASA of CASR 11.140 applying to all time-limited authorisations as defined. The first fiction is that the sameness criterion applicable to the new and old authorisations is also intended to exclude a whole class of time-limited authorisations from the benefit of the operation of CASR 11.140; the second fiction is that a medical certificate does not confer any privileges or authorise the holder to carry out any functions or duties and that the word “itself” can somehow be read into CASR 11.140. Putting words that aren’t there into legislation is an interpretive ‘no no’.
We all know the direct consequences, upon the exercise of the privileges of our licences, of not having a medical certificate. If there were no consequences, we wouldn’t care about getting one or how long Avmed took in its solemn deliberations on the complexities of the almost endless aero-medically relevant conditions that are disasters waiting to happen. Erstwhile PMO Navathe put it this way: “A pilot’s licence goes on forever, but it is the medical certificate which enables the person to use the licence.” That statement was made in the context in which John O’Brien could not – as the AAT put it – “exercise the full privileges” of his ATPL, because of Avmed’s then-mediaeval approach to CVD and medical certification (to which approach the CVD zealots have been again allowed to return).
I’m also considering seeking legal advice from recognised independent and disinterested experts, and publishing the advice. I am naturally conflicted in the matter, because every interaction I have with Avmed involves unlawful behaviour or damaging overreach on its part. I would be astonished if CASA has external legal advice to support its categorical position on the interpretation of CASR 11.140 , but would be happy to stand corrected.
All of that said, there’s ultimately only one opinion that counts.
Meanwhile, I’ve yet to get answer from CASA as to what provision of CASR results in flight training certificates issued under Part 141 ceasing after a particular period, or gives CASA power to issue flight training certificates issued under Part 141 with limited duration. Those were given as an example of time-limited authorisations that are, in CASA’s opinion, certificates subject to CASR 11.140. I’ll ask again and put an update in the separate thread I started on the subject.
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Say what?
A medical certificate is a time limited authorisation. Confirmed by CASA. OK, good, we all knew that. Not in dispute Never was.
CASR 11.140 only applies to time-limited authorisations which confer privileges or authorise the holder to carry out functions or duties;
11.140: blah blah blah, 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;
Let's say I have a commercial licence, but have not used it for years, and I just fly around privately on a Class 2.
The class 2 privileges are what limits my flying to private. The new one (when it comes) will confers the same privileges as my previous expired class 2.
But what if I want to fly commercial again, I go pass a Class 1 medical, and wait for it to turn up.
I cannot used the expired class 2 while waiting for my new class 1 to come back, to conduct commercial flights or to fly privately, because my new cert (when it comes) does not confer the same privileges as the previously held class 2. I applied for different privileges, I can't wave the 11.140 flag.
Now back to Class 2 old to Class 2 renewed. Nothing has changed and a medical certificate is a time limited authorisation, I applied for the same thing, same privileges etc and 11.140(3) comes in to play, the old authorisation continues. It says so right there, we can see it.
To say a medical certificate does not confer privileges or authorise the holder to carry out functions is nonsense. The medical cert is the consumable fuel for your licence.
You can have either a licence or a medical (one of) and sit on the ground forever, it is only when you have both you can go fly.
Footnote: yes I understand that comm/ATPL will have far more complex issues at play, like must HAVE the doc, not be on a promise to get it. But even then, 11.140 should apply to everyone equally.
A medical certificate is a time limited authorisation. Confirmed by CASA. OK, good, we all knew that. Not in dispute Never was.
CASR 11.140 only applies to time-limited authorisations which confer privileges or authorise the holder to carry out functions or duties;
11.140: blah blah blah, 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;
Let's say I have a commercial licence, but have not used it for years, and I just fly around privately on a Class 2.
The class 2 privileges are what limits my flying to private. The new one (when it comes) will confers the same privileges as my previous expired class 2.
But what if I want to fly commercial again, I go pass a Class 1 medical, and wait for it to turn up.
I cannot used the expired class 2 while waiting for my new class 1 to come back, to conduct commercial flights or to fly privately, because my new cert (when it comes) does not confer the same privileges as the previously held class 2. I applied for different privileges, I can't wave the 11.140 flag.
Now back to Class 2 old to Class 2 renewed. Nothing has changed and a medical certificate is a time limited authorisation, I applied for the same thing, same privileges etc and 11.140(3) comes in to play, the old authorisation continues. It says so right there, we can see it.
To say a medical certificate does not confer privileges or authorise the holder to carry out functions is nonsense. The medical cert is the consumable fuel for your licence.
You can have either a licence or a medical (one of) and sit on the ground forever, it is only when you have both you can go fly.
Footnote: yes I understand that comm/ATPL will have far more complex issues at play, like must HAVE the doc, not be on a promise to get it. But even then, 11.140 should apply to everyone equally.
Without the "time-limited authorisation" enabled by the issue of an appropriate medical certificate, one can't enjoy the "privileges conferred by the license"... Happy now??
(Oh, the cr*% they make us go through in ground school!
)
An indication of what's wrong with CASA entirely. Why give a yes or no answer when you can do so in a five page reply quoting every rule, subsection, clause and paragraph relating to, having related to or mentioned with nuance. Try talking on the phone (or face to face if you're very lucky) and get somebody from CASA to give you a yes or no answer.
Surely a medical is a requirement of the licence not an authorisation. I can hold a type N medical without holding any licence and it authorises me to do precisely nothing.
Thread Starter
And you can hold a pilot's licence without holding a medical, and the pilot's licence authorises you to do....
You've overlooked the fact that even CASA agrees that a medical certificate issued under Part 67 falls within the definition of "time-limited authorisation" in Part 11. CASA (and you) are effectively arguing that a time-limited authorisation as defined is not a time limited authorisation. Medical certificates are captured by the definition for a reason: So that they, among the other things captured by the definition, are the subject of the relief provided by CASR 11.140 in cases of CASA delays over which an applicant has no control.
You've overlooked the fact that even CASA agrees that a medical certificate issued under Part 67 falls within the definition of "time-limited authorisation" in Part 11. CASA (and you) are effectively arguing that a time-limited authorisation as defined is not a time limited authorisation. Medical certificates are captured by the definition for a reason: So that they, among the other things captured by the definition, are the subject of the relief provided by CASR 11.140 in cases of CASA delays over which an applicant has no control.
Well here's a twist.
I have a Class 2 medical. I am a student pilot. With no student pilot licence, because CASA did away with those.
I fly solo, with no licence at all.
I have a Class 2 medical. I am a student pilot. With no student pilot licence, because CASA did away with those.
I fly solo, with no licence at all.
