CASA claims to be an evidence-based and risk-based regulator. That claim continues to be, in my opinion, demonstrably false, at least in the case of Avmed. Although one need look no further than the recent resurgence of discrimination against pilots with CVD in the face of objective evidence, my own recent and ongoing experience provides one of what I consider to be numerous signal examples of how Avmed really makes decisions.

Although there’s a lot to digest in this post, I’d suggest anyone who holds a CASA-issued medical certificate has an interest in understanding the content.

In ordinary circumstances the details of my medical circumstances would be highly sensitive and their disclosure by others without my consent would, depending on the context, potentially constitute a criminal offence. Unfortunately, the ghastly Frankenstein’s monster that is the aviation ‘safety’ regulatory regime dictates that, if I want to pursue external review of CASA’s decisions, I have almost no choice but to expose these sensitive details to public view through dissection in the decisions of the AAT or Federal Court. (All in the name of ‘safety’ of course.) I might as well disclose by choice rather than subsequent necessity.

In the interests of refining the relevant facts and issues, I won’t go into all of the background here. However, in order to address any suggestions that I’m telling only half of the story, I’m happy to forward by PM all of the background documents and for someone with the time and technical know-how to post links to them. Further, I am also happy to consent to CASA publishing anything that it says is relevant and which it could not publish but for my consent.

The story so far…

Mid last year I felt that the hearing in my right ear had deteriorated. I undertook a hearing test and my GP referred me to an ENT specialist. The ENT specialist diagnosed the cause to be noise exposure during my 20 years’ service in the ADF – I fired weapons ‘right handed’. Note that the extent of deterioration did not result in me not meeting the hearing standard for a class 2 medical certificate.

The ENT specialist nonetheless recommended that I undergo an MRI to rule out the possibility of a tumour affecting my hearing. I chose to undergo the MRI. The MRI ruled out that possibility. However, it coincidentally indicated unusual cranial blood circulation. The ENT specialist therefore recommended that I consult a neurosurgeon. This happened around November 2017.

I consulted a neurosurgeon whose advice was that there could be a range of explanations for the results of the MRI, and the most reliable way to determine the cause of the indicated results was to undergo a procedure involving an incision into an artery in my groin, the feeding of tubes up through that artery to reach near the point in the cranium where the unusual circulation appeared to exist, the introduction of contrast dyes into the circulation at the point, which dyes then enable the precise inspection of blood flows using X-rays. This is called catheter-based digital subtraction angiography.

The neurosurgeon’s advice was that there was no urgency at that point in time because: (1) there was a range of explanations for the apparent anomalies on the MRI results and (2) I had no symptoms of anything suggesting the worst case scenario.

As a matter of objective fact, I continued then to go about my ordinary life, including flying, without incident or any unusual symptoms.

It is important to pause here to note these objective facts at that point in the timeline of events. That is because CASA has subsequently ‘spun’ the circumstances so as to suggest that I was diagnosed when the MRI results were considered by the neurosurgeon. That ‘spin’ is, in my opinion, intellectually dishonest and intended primarily to cast my decisions in a bad light. CASA also seems to me, either as a consequence of incompetence or intellectual dishonesty, to have incorrectly confused cranial circulation with brain circulation. My specialist explained the difference (and explained to me why CASA is not qualified to express an opinion on the matter).

I underwent the catheter-based digital subtraction angiography. The opinion of my neurosurgeon and radiologist was that the results indicated I had an arteriovenous fistula, Gognard Type IV. A fistula is, in layman’s terms, a ‘short circuit’ between arterial blood flow and venous blood flow – hence “arteriovenous”. “Gognard Type IV” = bad. When I understood the implications of this opinion, I ‘grounded’ myself.

It is again important to pause here to note that the diagnosis was merely an opinion, albeit an opinion of specialists whose competence I trust. The reason this is important is that although CASA now treats the diagnosis of these specialists as being an objective truth, notwithstanding that it was, as a matter of objective fact, merely the expression of an opinion, CASA now rejects the same specialists’ opinions as to the ongoing success of the procedure those specialists carried out to deal with the diagnosed condition. In short, CASA treats the specialists’ opinions as objective truths when they are against my interests, but rejects the same specialists’ opinions when they are in my interests. This approach is, in my opinion, biased and intellectually dishonest.

When the question of the diagnosis came up at a recent hearing in the AAT – more of this later – I said that the question whether the diagnosis of the specialists was accurate was an open one – that is, it remains to be argued and determined whether it was accurate. This was a potentially inconvenient prospect for CASA, because it might result in the risks not being quite so dire as CASA’s decision-maker suggested.

The reason the accuracy of the diagnosis was (and remains) an inconvenient prospect for CASA is that the unassailably objective fact is that I have not suffered any of the dire consequences that were supposed to be highly probable long-term consequences of the condition with which I was diagnosed. However, not for CASA the objectivity of considering the possibility that the original diagnosis – remember, it was just the opinion of specialists – might have ‘overdiagnosed’ the condition.

Rather, CASA’s lawyer merely asserted, from the bar table, that the preponderance of medical opinion was to the effect that my condition was likely to have arisen recently rather than have been congenital. CASA’s lawyer’s assertion is not entirely consistent with what I’ve been advised. I will leave CASA’s lawyer to decide whether, on reflection, good conscience and professional judgment would result in him making the same assertion from the bar table again in similar circumstances. Although it may be that he has medical qualifications of which I am not aware, he certainly conceded that the material headed “Relevant Medical Literature” in the delegate’s letter is not a compendium of all of that literature. (More of the decision-maker’s selective “Relevant Medical Literature” later.)

Back to the timeline of events: I consented to undergo the procedure that my specialists recommended to deal with the fistula. That procedure happened on 23 August 2018. In simple terms, the procedure stuck a plug in the short circuit. The opinion of my specialists, based on (1) their first hand observation of the effect the plug had on the circulation at the time, and (2) their specialist knowledge of how like procedures have progressed in the circumstances of like patients, is that the procedure was a success. (And just to jump forward temporarily: A dynamic CT angiogram conducted on 6 November 2018 confirmed their view.)

I was discharged from hospital as expected on 25 August 2018 and returned to normal activities in the following week. On 26 August I informed CASA of the fact that I had undergone the procedure and that, although I thought it was unnecessary, I understood why CASA would then suspend my medical certificate until satisfied I was fit to fly. The reason I waited until then was: (1) I had already grounded myself and (2) if the main risks of the procedure eventuated – death or stroke – I wouldn’t be returning to flying anyway.

I attended a follow-up consultation with the specialist in September and, other than a post-anaesthetic period of caution which had then passed, the specialist expressed no concerns. I returned to flying.

For the record: I continue not to be dead. Nor have I suffered a stroke or any other post-procedure complications.

Acting with all the urgency of a startled 3-toed sloth, CASA suspended my medical certificate on 16 October 2018. The suspension letter said, among other things: “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.” This was, effectively, a cancellation of my medical certificate, because it expires in mid-January 2019.

By letter dated 19 October 2018 my specialist said:

One amusing though disappointing aspect of my discussions with CASA’s lawyer at the recent AAT stay hearing was that he was at pains to point out that the specialist had qualified the word “heavy-handed” with the phrase “a little”. I suggested that the specialist may have intended some irony – analogous to the intent of the phrase ‘a little bit pregnant’. Certainly my specialist and other medical professionals use ‘a little stronger’ language when expressing views, in private, about CASA Avmed’s competence.

I note also that CASA seized upon the specialist’s opinion about my not meeting the class 1 standard as being relevant to my not meeting the class 2 standard. Setting aside the obvious point that I don’t need to or want to meet the class 1 medical standard, this is yet another example of CASA relying on my specialists’ opinion as an objective truth only when it is unfavourable to me.

Another amusing though disappointing aspect of CASA’s behaviour is the various weasel-worded attempts to paper over what is – to me at least – the patent legal errors in CASA’s statement: Taken at face value, the statement means that CASA Avmed has a policy that dictates the outcome in all cases during the period 12 months after a procedure, despite what evidence in individual cases and the risks arising from individual cases might suggest during the 12 month period.

In a letter to the AAT of 26 October 2018 CASA’s lawyer said:

The above is an example of numerous pieces of exquisite ambiguity in CASA’s correspondence in this matter. It goes without saying that anyone can submit anything s/he likes to CASA at any time. The question as to when and whether CASA will consider and change its mind on the basis of submitted material is an entirely different matter.

Accordingly, I emailed a letter dated 30 October 2018 to CASA in which I made a request to CASA’s lawyer in these terms, with my underlining:

CASA’s lawyer called me on the morning of 31 October 2018. As a consequence of the importance of the content of that call, I emailed him a letter dated 31 October 2018 setting out my understanding of the substance of the conversation. I noted during the conversation that I was dubious of conversations the content of which a party was not prepared to confirm in writing.

In my emailed letter dated 31 October 2018 I requested, among other things, that CASA’s lawyer let me know if any of the content was materially incomplete or inaccurate and, if so, in what way. I also requested, among other things, that he seek instructions and let me know CASA’s position on the following question:

The answer to that was given on 7 November: Here’s what I say is CASA Avmed’s actual current position: CASA Avmed is not going to change its assessment before 12 months has elapsed, irrespective of what material is put before CASA. The decision-maker meant what he said. That position is, at least, honest, even if manifesting errors of law. CASA’s attempt to paper over that position is, in my opinion, intellectually dishonest.

The person who decided to suspend my medical certificate has no specialist qualifications in the matters relevant to the condition with which I was diagnosed nor the risks arising from the treatment of it. His decision letter annexes material that is headed “Relevant Medical Literature”. The letter does not say who decided on the relevance of the material. However, it is manifestly clear that it is not a compendium of all medical literature relevant to my circumstances – a point that CASA’s lawyer and the decision-maker had little choice but to concede during discussions prior to the AAT stay hearing.

Although I could (and eventually will) analyse the detail of the various assertions made in a ‘Statement’ of the decision maker that was submitted to the AAT, I note a couple here:The phrase “the available review of scientific literature” seems either to have mistakenly misplaced the word “available”, or to mean what it says. Either a review was done of ‘available scientific literature’ – the appropriate course to take if CASA was in fact an objective evidence and objective risk based regulator, or an “available review” was done of ‘some’ “scientific literature” – the course that appears to have been taken in my case to justify a foregone conclusion.

It seems that the opinions of specialists with first-hand knowledge of my circumstances and how other people in like circumstances have recovered from procedures is not considered by the decision-maker to be ‘evidence’ (even though their opinion as to the existence of the condition is treated as an objective truth by the same decision-maker). The “known high likelihood of recurrence” is not quantified and the knowledge seems to me to arise from the selectively quoted and misconstrued “Relevant Medical Literature” at Annex A to the decision-maker’s letter.

For example, there is text quoted from what’s headed the “Ambekar Study” and a scary table and text from under that table. However, critically important text from the actual study that contains the findings that are purportedly described in the table has been omitted from the decision maker’s letter. (Again, just to make sure I cannot be accused of making this up, the study selectively quoted in the decision-maker’s letter is titled “Long-term angiographic results of endovascular “cured” intracranial dural arteriovenous fistalas”. A whole paragraph commencing “Follow-up angiography…” is omitted from the decision-maker’s letter, yet this paragraph contains data that are fundamental to understanding the scary table and text. The decision-maker’s letter says the table is “Figure 1”. The published article refers to the table, and marks the table, as “Figure 3”.)

When I got an expert in probabilities and mathematics to look at the text of the study, the expert’s conclusion was that the table depicts the probabilities of when a recurrence of a previously treated fistula will occur, not the probabilities of a recurrence. In other words, the table does not say how likely a recurrence is, but rather, when it is likely to happen if it happens. These are two fundamentally different probabilities. CASA’s non-expert in Avmed seems to me to be confusing the two.

If CASA were in fact an objective evidence-based and objective-risk based regulator, it would do this: Ascertain – on the basis of all relevant medical literature and current specialist expertise – (1) the probabilities of recurrence or adverse consequences of the procedure I underwent, and (2) ascertain the probabilities of those adverse consequences resulting in a sudden, incapacitating disability to discharge PIC duties during day VFR operations, then (3) work out whether that risk is ‘acceptable’ by reference to the percentages that Avmed says are ‘acceptable’.

One of the more breathtaking statements made by CASA’s lawyer during the stay hearing was this: That would explain a great deal, including why medical professionals now say what they say about Avmed. But if CASA were honest, the statement should have gone on to say: “unless the opinions of treating specialists are adverse to the interests of certificate holders, in which case we’ll treat those opinions as objective truths”.

CASA canvassed the option of imposing a “safety pilot required” condition on my certificate. I asked for evidence of the number of pilots with that condition imposed on their certificate by CASA who have suffered sudden incapacitation, requiring the intervention of the safety pilot. There was no evidence provided to show that the condition has ever had a practical consequence in reality. However, this inconvenient truth was waved away on the basis that …. maybe pilots aren’t complying with their obligations under the law requiring reporting of sudden incapacitation of crew members. In contrast, when I suggested that the way in which people like me and others have been treated by CASA may be resulting in pilots being too scared to raise issues with doctors or concealing potentially safety-relevant information from DAMEs and CASA, the answer was that this would be against the law. Yet another example of CASA spinning circumstances to wave away potentially inconvenient truths.

The AAT has reserved its decision whether to stay CASA’s decision to suspend my medical certificate. I will let everyone know the decision and further progress in my application.

For those who’d prefer to ‘tut tut’ and claim ‘healthier than thou’ status from the sidelines, I expect you to put your medical certificate where your mouth is. You should volunteer for precautionary angiography, the results of which you’ll forward to Avmed and on the basis of which you’ll ground yourself if anything potentially anomalous is indicated. Although CASA downplays the probabilities of fistulas, to avoid an inconvenient truth, the objective evidence suggests otherwise. However, there is good news about the objective evidence of the probabilities of you having a fistula multiplied by the probabilities of you suffering debilitating in-flight consequences. The bad news is that CASA appears not to be interested in the objective facts and objective risks.

Regards and safe flying.

Clinton, that is an awesome post. I wish you every success with the appeal. The action of CASA AVMED is just the sort of thing that stops pilots from talking to their doctors, thereby creating a scenario that is detrimental to safety. I hope you’ve got the will and means to fight them all the way. Thank you for sharing this.

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...
i sympathise with your battle and wish you the best in your appeal.
Cloudee, you are 100% correct that the current culture ENCOURAGES those in our profession to keep their mouths shut rather than seek assistance - as Cloudee said, to the detriment of safety.
Clinton, thanks for your detailed post.

Thanks Cloudee and joseph.

Horatio: I’m not sure I have the choice, anymore. Having been diagnosed with something that I have disclosed, it may be that I’m the regulator’s plaything for the rest of my life.

Torres: It’s been around 20 years since I worked in CASA. I’ve long since grown up and moved on.

Today the reality is that I’m effectively being punished by the regulator for having tried to do the right thing. Although it may not have been the subjective intention of CASA staff to punish me, the objective reality is that I am being punished because of the way in which CASA Avmed chooses - note, the word “chooses” is very important - to administer the medical certification system. Selectively disregarding and relying on the opinions of treating specialists is a choice. Construing everything in way that highlights the worst possibilities and downplays the best possibilities is a choice. As the thread title says, this is, in my view, a biased and intellectually dishonest approach.

Avmed used to work differently, and used to be an integrated and respected part of the system of aviation safety.

Most of the pilots with whom I’ve discussed my current circumstances have asked why I was so stupid as to disclose to CASA in the first place, or so stupid as to volunteer to do the MRI. That scares me. What scares me even more is that the positive disincentive to disclosure or even to seek medical advice ‘when in doubt’ appears not to scare CASA Avmed. I assume that in their world they’re sure they’re making a positive contribution to aviation safety.

My description may be wrong. Right cheek and ear were closest to the bang stick when it went bang. Right hand on the pistol grip and right index finger on the trigger. Left hand supporting the barrel. I call that firing right handed.

Computer says no.

Update: Today the AAT decided not to grant the stay.

These are the Tribunal’s reasons for refusing to grant the stay, with a couple of omissions noted and comments by me in square brackets:

1. This decision is about whether a decision by the Civil Aviation Safety Authority (CASA), the respondent, suspending the Class 2 medical certificate held by Mr Clinton McKenzie, the applicant, should be stayed. CASA suspended the medical certificate in a reviewable decision dated 16 October 2018. Mr McKenzie applied for review of the decision on 17 October 2018. On 21 October 2018 Mr McKenzie sought a stay order. The suspension decision prevents Mr McKenzie from flying; the effect of a stay, if granted, would be to allow him to fly pending his review being heard and determined.

2. The tribunal held a hearing on 9 November 2018. Mr McKenzie, who is legally trained, appeared in person; Mr Anthony Carter appeared in person representing the respondent. He was accompanied by Dr Sanjiv Sharma, a Senior Medical Officer with CASA. Dr Sharma gave evidence to assist the tribunal to assess some of the medical evidence.

[The hearing was about an hour and a quarter long.]

3. The tribunal had available to it the documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (these are known as the “T- documents”); various emails and letters between applicant and respondent; medical reports; a statement by Dr Sharma with an attachment summarising medical literature; a statutory declaration by Mr McKenzie, with attachments; and submissions by both parties.

ISSUE

4. The only issue before the tribunal is whether the stay sought by Mr McKenzie should be granted.

LEGISLATIVE FRAMEWORK

5. Section 41 of the AAT Act deals with the operation of a decision that is the subject of an application for review by the tribunal. Subsection 41(1) provides that, subject to the provisions that follow, an application for review does not affect the operation of the decision for which review is sought. Subsequent subsections allow departure from that outcome. Subsection 41(2) allows the making of an order staying or otherwise affecting the operation of the decision to be reviewed, in the following terms:

“(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”

6. Subsequent subsections provide for the variation or revocation of a stay order and for interested parties to be given an opportunity to make submissions.

7. Section 31 of the Civil Aviation Act 1988 (the CA Act) provides for certain decisions under the Act or the regulations to be reviewed by this tribunal. Such decisions include suspensions of certificates, permissions, permits or licences issued under the Act or regulations and the imposition or variation of conditions, or the cancellation, suspension or variation of an authorisation contained in such instruments. Section 31A provides for automatic stay of certain decisions, where a “show cause notice” is issued under the Act or Regulations. The operation of show cause notices is limited to airworthiness matters and it is accepted that the decision under review was not subject to a show cause notice.

8. Section 98 of the CA Act provides for the making of regulations for a wide range of purposes under that Act. The Civil Aviation Safety Regulations 1998 (the Regulations) provide the main body of rules governing civil aviation operations in Australia. Part 67 of the Regulations provides for the issue and control of medical certificates. Part 67B provides for the appointment of designated aviation medical examiners (DAMEs) and designated aviation ophthalmologists. Regulations 67.150, 67.155 and 67.160 set out the requirements for three medical standards, standards 1, 2 and 3 respectively. Regulation 67.230 allows CASA to direct the holder of a medical certificate to submit to a medical examination or undergo other tests or to authorise the disclosure of information if it is necessary, in the interests of the safety of air navigation. Where CASA issues a direction for a medical examination under regulation 67.230, subregulation 67.240(1) allows CASA to suspend the person’s medical certificate pending the examination. Subregulations 67.240(4) and (5) read as follows: [omitted by me]

9. Regulation 201.004 sets out decisions under the regulations that are reviewable by this tribunal; the provision includes any decision under the Regulations suspending an authorisation otherwise than on the application of the authorisation-holder. Regulation 11.015 states that “authorisation” includes a certificate capable of being granted to a person under the Regulations.

THE FACTUAL CONTEXT

10. Mr McKenzie holds a Class 2 medical certificate issued on 4 April 2017, expiring on 30 January 2019 (a Class 2 medical certificate means that the holder meets standard 2 set in regulation 67.155 of the Regulations). Mr McKenzie also holds a private pilot licence and must hold a Class 2 medical certificate in order to be able to fly. Mr McKenzie said that he flies for pleasure and greatly values the privilege of being able to fly.

11. Mr McKenzie was troubled by sensorineural hearing loss in his right ear and in November 2017 he had an MRI to help identify a cause. No results were found relating to the hearing loss, but the neurosurgeon, Dr Peter Mews, discovered a vascular anomaly in the left frontal part of the brain (report of Dr Mews, 2 November 2017, T1 folio 8). Dr Mews noted that Mr McKenzie had no previous symptoms or history and suggested that the most likely diagnosis was a dural arteriovenous fistula (DAVF) with some other possibilities (arteriovenous malformations) also considered. He explained to Mr McKenzie that the potential diagnosis carried a risk of haemorrhage, seizure or ischaemic neurologic deficit. He recommended a cerebral angiogram as the best way to “clarify the pattern of flow and the nature of the anatomical lesion”.

12. Mr McKenzie underwent the cerebral angiogram, and a report by Dr Mews (26 April 2018, T1 folio 10) confirms an arteriovenous fistula “Cognard type IV” (I gather the Cognard name comes from a system for classifying this type of fistula). Dr Mews also suggested that this type of fistula “is associated with a malignant behaviour risk (haemorrhage, ischaemic neurologic deficit, or seizure) approaching 40% per year”. He recommended treatment, which carried with it an element of risk. A report dated 12 July 2018 (T1 folio 12) reports on a further consultation with Dr Mews. The preferred treatment modality was endovascular obliteration with liquid embolic material, although the risks of the procedure are significant.

13. A report of Dr Shivendra Lalloo, dated 24 August 2018 records the procedure, which was carried out by catheterisation and introduction of embolic fluid identified as “Onyx 18”. I gather that Dr Lalloo (described by Dr Mews in an earlier report as “the senior neuro interventional practitioner in Canberra”) carried out the procedure, assisted by Dr Mews. The procedure was regarded by the doctors as having been successful.

14. Drawing on the evidence given briefly by Dr Sharma at the hearing (for which I am grateful), it may be helpful to explain Mr McKenzie’s condition and the procedure used to treat it. The DAVF involves an anomalous connection - the fistula - between the arterial blood vessels and the venous blood vessels in the brain, with the possibility of blood from one part of the circulatory system making its way into the other. The treatment involves filling the fistula with copolymer material delivered through a very fine catheter; the copolymer material sets or hardens, closing off the connection between the two sets of blood vessels.

[My comment: As noted earlier in this thread, the advice to me is that the anomalous connection was in the cranial blood flow, not in the blood flow in the brain. Dr Sharma is not a specialist in this area.]

15. On 26 August 2018 Mr McKenzie wrote to CASA advising that he had undergone the above procedure, explaining how the diagnosis came to be made, and suggesting that the procedure had reduced his risk by treating his arteriovenous fistula (T16). He noted that he had not flown since the condition was diagnosed and said he would not fly again until he received specialist advice that he was medically fit to do so. He suggested that his medical certificate did not need to be suspended but recognised that CASA might take a different view. By letter of 28 August 2018 (T17) Dr Sharma reminded Mr McKenzie of his obligation not to fly while his capacity was impaired, and sought a report from his treating doctor.

16. Mr McKenzie’s general practitioner, Dr Hayden Henry wrote to CASA on 31 August 2018 (T19) stating that the procedure undergone by Mr McKenzie had been a success and that he was “unimpaired and symptom free” neurologically, although he had not undertaken a full neurological examination.

17. In a letter to Mr McKenzie dated 12 October 2018 (T26) CASA provided an update about an application for a medical certificate, stating that the matter had been referred to complex case management (CCM), a process CASA uses to assess more difficult medical certification issues (at this time Mr McKenzie still held a medical certificate, so it appears that the letter misstated the reasons for the assessment; in practice it related to Mr McKenzie’s fitness to retain his certificate rather than whether or not to issue a certificate). The CCM report (T27) concluded that reports should be gathered from the relevant specialists addressing questions such as the risks of recurrence of the fistula, ongoing monitoring requirements, the percentage risk of incapacitation and the long -term prognosis, and appears to have considered two options: allowing Mr McKenzie to retain his class 2 certificate with a neurological report after 12 months; and suspending his medical certificate in order to establish whether he is fit to fly through neurological assessments over the next 12 months.

18. On 16 October 2018 CASA took the decision currently before the tribunal (T3): the decision issues a direction under regulation 67.230 requiring Mr McKenzie to undergo a medical examination; and suspending his medical certificate under regulation 67.240. The reasons for the decision identified several elements of the class 2 medical standard in regulation 67.155 which CASA was not satisfied that Mr McKenzie met, as follows:

“Abnormalities, disabilities and functional capacity
2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
a) an abnormality
b) a disability or disease
c) an injury
d) a sequela of an accident or a surgical operation
2.2 Has no physical conditions or limitations that are safety-relevant
Nervous system
2.7 Has no established medical history or clinical diagnosis of:
a) a safety-relevant disease of the nervous system; or
b) epilepsy; or
c) a disturbance of consciousness for which there is no satisfactory medical
explanation and which may recur
2.8 Is not suffering from safety-relevant effects of a head injury or neurosurgical procedure

19. The reasons also identify possible risks as including haemorrhage, venous congestion/hypertension and oedema, ischaemic neurological deficit, seizure , and procedure related risks (permanent neurologic morbidity and failure of the procedure requiring re-treatment).”

20. The direction to submit to a medical examination includes the following in bold type: “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”.

21. On 19 October 2018 Dr Mews emailed CASA (T32) asking for guidance on what CASA might need with regard to establishing that a person who had undergone DAVF treatment by endovascular techniques was now fit to hold (or retain) a class 2 medical certificate. He noted that he himself held a class 2 certificate and a private pilot licence. He said “I have advised the patient not to fly and notify his DAME to work towards medical clearance to resume his pilot privileges”. He noted that the patient (who was unnamed in the email) had no neurological symptoms and no adverse effects from the procedure. CASA’s response (also at T32), dated 22 October 2018, encouraged Dr Mews to submit all available medical information, noting that CASA might need to seek further information from the applicant.

22. On 19 October 2018 Dr Mews also wrote to Mr McKenzie (T29). In that letter he said that

a) CASA’s approach (as relayed by Mr McKenzie) “would seem a little heavy- handed”.

b) His professional opinion was that he did not consider Mr McKenzie a risk of incapacitation following the treatment of his DAVF. “I would consider you safe to fly for daytime VFR PPL flying. I would not consider you fit for a class 1 medical professional flying for a longer period, however.”

c) He had written to CASA (this is plainly a reference to the email at T32), and after receiving a response, would write a report stating his conclusion that Mr McKenzie was not at risk of incapacitation. He thought that Dr Lalloo held the same view, but both thought that CASA would require something further, such as a cerebral angiogram demonstrating no residual flow post treatment.

23. Mr McKenzie undertook further consultation with Drs Mews and Lalloo. Shortly before the hearing he provided a statutory declaration which included as an annex a report by Dr Lalloo of a CT scan (including both “limited CTB” and “dynamic CTA”), taken on 6 November 2018. In the report Dr Lalloo notes that “Limited CTB does not demonstrate any ICH [intracranial haemorrhage], left frontal infarction or hydrocephalus” and “Dynamic CTA demonstrates no evidence of residual AV shunt in the anterior cranial fossa.” The conclusion was “High quality dynamic CTA suggests no residual dural fistula”. I understand that “dynamic CTA” offers higher resolution and much more information than other forms of CT.

CONSIDERATION

24. CASA has argued that the tribunal’s jurisdiction extends to the suspension decision but not to the direction to Mr McKenzie to submit to a medical examination. That is indeed so: section 31 of the CA Act and regulation 201.004 of the regulations make it clear that the suspension decision is reviewable and the direction is not. Mr McKenzie has pointed out that an element of the decision to require a medical examination is legally somewhat dubious: the statement that CASA will be unable to take a decision until 12 months have elapsed would appear to have the effect that CASA has attempted to bind decision-makers in the future regardless of what evidence might be before them. Further, that appears to be at odds with the wording of subregulations 67.240(4) and (5), which contemplate that a person might bring forward information at any time and by so doing would oblige CASA to assess whether in those circumstances the suspension of a medical certificate should be lifted or maintained. As the direction is not reviewable, however, that is a matter for CASA.

[My comment: The “legally somewhat dubious” issue noted by the Tribunal is what CASA continues to try to paper over. It is, indeed, a “matter for CASA” which CASA has chosen deal with in a way that I consider to be utterly unconscionable. I have written to CASA, again, about this issue.]

25. Applications for a stay take on a different character depending on the legislative context of the decision under review, and even under a single piece of legislation, in the different contexts of each matter. But in the aviation safety context it is well established1 that an application for a stay comes to be considered in the light of three general considerations:
a) the applicant’s prospects of success in the substantive review;
b) any hardship that may result to those affected by the decision in the absence of a stay; and
c) the public interest in air safety.
[Footnote omitted.]

26. The above matters contribute to determining whether or not a stay is “desirable”, as specified in subsection 41(2) of the AAT Act; that subsection also requires that the stay decision is one that the tribunal considers appropriate “for the purpose of securing the effectiveness of the hearing and the determination of the application for review”. Where the denial of a stay would render the review itself nugatory, that would provide a clear basis to consider the grant of a stay.

27. Mr McKenzie argued that the reports and statements from Dr Mews and Dr Lalloo provide the basis for a decision that he is medically fit to fly under his existing class 2 medical certificate. He is therefore likely to be successful in the review process, the suspension is highly likely to be lifted, and there is no reason not to grant a stay. He noted that the condition for which he had been treated was of unknown origin, and he might have been carrying it for some time – perhaps years; thus the procedure to treat it had reduced his risk, not increased it. He accepted that denial of a stay would not cause him significant hardship, as flying is not a major source of income for him; and similarly he accepted that denial would not render the substantive hearing nugatory.

28. CASA argued that Mr McKenzie is yet to demonstrate his medical fitness to resume flying; that Dr Mews’s clearance in his letter of 19 October 2018 is qualified; that a number of the issues raised in the CCM report and in the reviewable decision are yet to be addressed; and that Mr McKenzie has not been in contact with his DAME, which would be the usual pathway to medical clearance. The evidence does not provide any assurance that the current level of risk is within the tolerances required by the class 2 standard. There is no indication that a stay would have any consequences in terms of hardship or the effectiveness of the hearing. Finally, there are significant considerations relating to public safety, including those arising under international agreements by which Australia is bound, such as the Chicago Convention.

Prospects of success

29. It is accepted that an interlocutory hearing is not the time to assess the merits of an applicant’s case in any substantive way, making findings of fact; rather the tribunal’s task in considering a stay application is to make a general assessment of the prospects of the applicant, at their highest. Making such an assessment in this matter was attended with some difficulty because of the late provision of the CT report from Dr Lalloo. This was a somewhat technical document, and I took some evidence from Dr Sharma in order to understand it better (and to understand some other technical elements in the evidence).

[My comment: If the advice given to me about where the fistula was located is correct, Dr Sharma confused rather than assisted in an understanding of that issue.]

30. It certainly seems clear that the procedure undertaken by Drs Mews and Lalloo has been very successful. Their reports make that plain. It remains the case, however, that the reports available at this point do not address all the elements raised by CASA in the CCM report and the reviewable decision; in particular, there is no expert opinion on the possibility of recurrence of the fistula; no comment on Mr McKenzie’s general prognosis beyond Dr Mews’s comment that he is not a risk of incapacity; and no overall assessment of the quantitative level of risk associated with Mr McKenzie’s post-operative condition. No DAME has been involved to this point, and although Mr McKenzie is no doubt right when he says that a decision by a DAME will be essentially guided by the expert opinion of the relevant specialists, it is nevertheless the case that a DAME will be the person who takes an overall perspective and ensures that all relevant considerations have been taken into account. There is no indication, for example, that Dr Mews gave consideration to all the relevant aspects of regulation 67.155 when he provided the assurance that there was no risk of incapacity.

31. If Mr McKenzie can gather all the relevant medical evidence – including presumably detailed reports and records from Drs Mews and Lalloo – it seems possible that he could be successful at a hearing. But on the material currently available to me I cannot conclude that that is the most likely outcome. On the material presently available to me it is my view that Mr McKenzie’s prospects are not nearly as good as he asserts.

Hardship and the effectiveness of the hearing

32. I have no reason to conclude that Mr McKenzie would be caused financial hardship by denial of a stay. He did not make any case in that direction; rather he said that he flew for the joy of it. Denial of a stay might cause him emotional hardship, but nothing beyond that. And he conceded that refusal of a stay would not render a hearing nugatory.

[I am disappointed that so little weight is attributed to the value of an individual’s recreational activities. However, there is not much I can do about that.]

Public safety

33. Mr McKenzie made various arguments about the comparative risks to himself and others of flying his small aircraft and driving a car. Most of these comments are irrelevant for my purpose, which is limited regarding aviation safety matters to the question of whether Mr McKenzie meets the standard set in regulation 67.155; comparisons with other activities have no bearing on that question. The public safety aspect of the stay decision is clearly caught up in the question of medical fitness and therefore with the prospects of success of the application for review. But Mr McKenzie is not flying commercially, although he does take passengers with him and there are the risks to public safety of others on the ground should an accident occur. These risks are not to be lightly dismissed. Managing them is part of CASA’s core role: see section 3A of the CA Act; McPherson v Civil Aviation Authority (1991) 22 ALD 754; Griffiths, Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274.

[Ironically, these public safety risks are never quantified by CASA. As with much of the aviation regulatory system, it’s sadly left to intuition tainted by cognitive bias. I stress I’m not criticising the Tribunal on this point. It’s just a natural human tendency. But that’s precisely my point. ]

34. Mr McKenzie is not the only party to have raised irrelevant arguments in this matter. CASA has pointed out that Dr Mews has said that Mr McKenzie would not meet the standard for a class 1 licence. That is so, but it is not relevant to whether he meets a class 2 standard. It is to be expected that there will be a subset of class 2 licence holders who would not meet the class 1 standard. Mr Carter also dwelt on the 40% annual risk identified by Dr Mews before the procedure was undertaken. That was indeed very high, but it is the risk following completion of the procedure that is determinative in this matter. If the condition recurs, the risk would presumably depend on the particular form and severity it takes.

[And there is no acknowledgement that the original diagnosis might not be an objective truth. It is, after all, just an opinion.]

35. The international agreements governing air safety were given some emphasis by Mr Carter; but the usual course is that such agreements are given effect by incorporation of relevant provisions into municipal law. I have arrived at my decision by following the legislation, the authorities and the facts of the matter. I have not taken separate account of international agreements.

Other considerations

36. Mr McKenzie’s current medical certificate expires on 30 January 2019. The period in which a stay could operate is therefore short, and that limits its utility, which militates against the grant of a stay. At that time Mr McKenzie would need to apply for a new certificate, and the matter would come before CASA for decision once more. Any decision adverse to Mr McKenzie would be open to appeal to this tribunal.

37. The parties have raised the possibility that a stay might be granted with conditions, for example, that Mr McKenzie’s flying might be limited to daylight hours or that he might only fly passengers who have given consent after being informed of his medical history. There was discussion of these matters at the hearing. An outcome along those lines would clearly be second best for Mr McKenzie, but would allow him to keep flying. CASA appeared to put forward such an option only where for other reasons I might be inclined to grant a stay. As I am not so inclined, I have not considered the advantages and disadvantages of those options at any level of detail.

CONCLUSION

38. I regard Mr McKenzie’s prospects of success as uncertain, the refusal of a stay would not cause him hardship or prevent an effective hearing, there are real questions of public safety, and the utility of a stay is limited. Taking all the above matters into consideration, I refuse the application to stay the decision under review.

This is the text of a letter I sent by email to CASA on 14 November to try again to pin CASA down on the “legally somewhat dubious” issue noted by the Tribunal in its reasons for denying my application for a stay:

CT SCAN RESULTS

You might recall that in my email letter to you of 31 October 2018 I requested that you seek instructions and let me know Avmed’s position on the following question:

You might also recall that I underwent a high quality dynamic CT scan on 6 November 2018, and provided to your client and the Tribunal a copy of Dr [x’s] report on the scan as an attachment to my statutory declaration dated 8 November 2018.

By email 7 November 2018 you said, among other things:

Your response raises two issues in the context of the scan I underwent on 6 November 2018 and CASA’s position on the results:

(1) Whether the scan I underwent does provide sufficient detail for assessment purposes, given that, based on advice I have been given, the scan was not “a simple CT scan”.

(2) When will Avmed do assessments of and make a decisions on material put before it.

On the first issue, you might recall that during the hearing on 9 November 2018 I provided to the Tribunal and your client a copy of the first page of a review article setting out what dynamic CT scans do in comparison with other forms of angiography. I hope that Avmed has conferred or will confer with experts to ascertain whether the results of the kind of scan I underwent are sufficient for assessment purposes. For your convenience, I attach a copy of the first page of the review article as well as a copy of Dr [x’s] report of the high quality dynamic CT scan carried out on 6 November 2018.

I therefore request that you seek instructions and let me know whether Avmed considers the results of that kind of scan are sufficient for assessment purposes at all, even if not, in Avmed’s opinion, determinative at this point in time.

On the second issue, there continues to be imprecision about what is, in my view, a simple and reasonable request. I reiterate that request from my letter dated 30 October 2018:

The continued imprecision around this issue strongly suggests to me that the delegate meant what was said, in bold, in the decision letter:

Quote:

---

Please be advised, CASA is unable to make a risk assessment of your fitness to return to flying until 12 months has elapsed following your embolisation procedure.

---

If the truth is that Avmed meant and continues to mean what is said in the decision letter, and simply refuses to do an assessment or contemplate changing its opinion until 12 months have elapsed following the procedure, could you please just confirm that. I realise that the truth may be inconvenient for CASA, but that is a problem of CASA’s own making.

It would in my view be utterly unconscionable for CASA to maintain the pretence that material I submit will be considered objectively by and potentially alter Avmed’s opinion of my fitness before 12 months have elapsed following the embolisation procedure, if as a matter of fact Avmed meant and continues to mean what it said in the decision letter.

Regards

it will be based on the assumption that if nothing has happened in 12 months then nothing is going to happen in future.

Some good questions there. In the outback at the moment with only intermittent interweb. Will respond more fully in the next couple of days.

look at it from the Avmed staff point of view; there is no “‘upside” for them in letting you fly. There is plenty of downside. They will automatically be blamed for letting you fly if you have an accident.

Their only defence is relying on the AAT and multiple specialists reports to diffuse the responsibility of letting you fly; such that they cannot be blamed.

They are on contracts so the easiest and safest thing for them is to say “no” to you.

This cannot change until the political pain of letting us fly freely is less than the political pain from preventing us from flying. We need (as I keep saying like a broken record) to create a lobbying body that is capable of inflicting great political pain on selected political targets. AOPA USA has such an attack dog. We need one too.

Unfortunately our potential attack dog was slipped a bait by the government and is no more.

Sounds like they are treating you as if you had Acoustic Neuroma. The UK CAA has some good guidelines which many AVMED doctors follow.

eg ENT

https://www.caa.co.uk/Aeromedical-Ex...e-material-GM/

HL, expanded voluminously previously. AOPA USA has an affiliated PAC that keeps the FAA honest. We don’t.

I am so sorry to read all this Clinton. For a private pilot there should be only two considerations when issuing a medical:
Is the pilot likely to die or become incapacitated at the controls?
Is the pilot a suicide risk?
It would seem in this age of stifling bureaucratic intervention that simplicity is never a consideration. Folk, in particular Australians are more at home offering restriction,writing legislation and being afraid of litigation. The phrase “arse covering” is on everyone’s lips, even in this very thread but the statement in truth is corrected simply by wearing trousers.

The solution of course is civil disobedience on a grand scale but bureaucracy has covered its own arse here by keeping the majority of Australians a pay check or two away from bankruptcy and keeping the disinterest in and disenfranchisement with politics alive. It is no longer possible to even keep the bastards remotely honest. Getting a politician to take an interest in a personal case like Clinton’s was once possible, now it is a thing of the past.

On my travels around this country I occasionally come across folk without medical and/or current flight reviews and even operating aircraft without current maintenance releases. I don’t really need to ponder why this is happening.

the root of the problem is that public servants are now employed on renewable short term contracts. there is no more “full and frank advice” to be had, all you get is arse covering.

That is exactly what we need,, and there is a aFederal election next year.

fixed............