Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 795
ADMINISTRATIVE APPEALS TRIBUNAL	)
		)	No 2010/0712
GENERAL ADMINISTRATIVE DIVISION	)	
	Re	HARLEY JONES	
	Applicant
	And	CIVIL AVIATION SAFETY AUTHORITY	
	Respondent
DECISION
Tribunal	MJ Carstairs, Senior Member and Dr M Denovan, Member	
Date	 15 October 2010
Place	 Brisbane
Decision	The Tribunal affirms the decision under review.

	......................[Sgd]........................
	Senior Member 

CATCHWORDS
CIVIL AVIATION – Class 1 and Class 2 medical certificates – History of substance use – Safety-relevant condition of substance use – Decision under review affirmed.

Civil Aviation Act 1988 (Cth), s 9A
Civil Aviation Safety Regulations 1998 (Cth), regs 67.010, 67.015, 67.150 (Item 1.5 & Item 1.6), 67.180, 67.195

Re Hall and Civil Aviation Safety Authority [2004] AATA 21
Re Mulholland and Civil Aviation Safety Authority [2007] AATA 1952

REASONS FOR DECISION

15 October 2010	MJ Carstairs, Senior Member and Dr M Denovan, Member		

1.	Harley Jones is a young man who holds a student pilot licence and, we were told, the dream of earning his living flying aircraft.
2.	To realise his dream, Mr Jones needs to hold a private pilot licence.  He is unable to do so, however, as the Civil Aviation Safety Authority (“CASA”) refused to issue to him a Class 1 or Class 2 medical certificate for which he made application early in 2009.  He has three convictions for driving under the influence (“DUI”) of alcohol.  These offences occurred between the ages of 19 and 21. He also has a conviction for supplying drugs at around the age of 19.  
3.	Mr Jones maintains that the DUI offences were in the minor range.  He maintains that he has not taken drugs, pointing to his conviction for supply, not usage.  He says that he has been treated badly by CASA and its doctors and that he is entitled to the medical certificates.  The respondent however maintains that his history of substance related offences is such as to bring into question Mr Jones’ suitability to be a pilot.
4.	We have decided that CASA was right to refuse the medical certificates, for the reasons which we now outline. 
ISSUES
5.	The ultimate issues for determination in this application are: 
(a)	whether Mr Jones meets the medical standard for the issue of a Class 1 or 2 medical certificate; and, if not,
(b)	whether the extent to which Mr Jones fails to meet the standard is likely to endanger the safety of air navigation; and, if so,
(c)	whether any conditions could be imposed upon a medical certificate that would ameliorate the threat posed to air safety by Mr Jones’ failure to meet the medical standard.
BACKGROUND
6.	Mr Jones was medically examined for a Class 1 medical certificate on 3 February 2009 by designated aviation medical examiner (“DAME”) Dr GP Chaffey.  The medical form completed at that time brought to light the substance use issues that we must now consider.  Dr Chaffey, it seems, filled out the medical form, but it was Mr Jones who, declaring that he had carefully considered the statements in it, signed and declared the form as true and correct.
7.	In the medical form, Mr Jones acknowledged convictions relating to drugs or alcohol, and to use of proscribed substances (the question being phrased “ever or … now”).  Presumably, Mr Jones having provided that information, Dr Chaffey ticked “yes” to a later question asked of the assessor, about whether he thought there were  any areas of concern warranting specialist referral or counselling.
8.	Dr Chaffey’s handwritten notations on the medical form at T5 were that Mr Jones had three DUI charges, the most recent being in 2003, but all were low readings.  As to drugs, Dr Chaffey wrote “cocaine + amphetamines. User for about two years”.   Mr Jones claims that he signed the medical form in haste and he did not really read the document or Dr Chaffey’s notes.  His father, who represented him at the hearing, submitted that Harley had been overawed by the status of the DAME, and was not given time to read the completed form, nor to seek legal advice before signing it.
9.	Dr Chaffey also prepared a brief written report to CASA, noting that a regime of random drug testing might be an appropriate form of deterrence for Mr Jones in the circumstances of the reported drug history, but he suggested that CASA test frequently.  Taken in the context of his other remarks, Dr Chaffey appears to indicate that he accepted that the alcohol readings in Mr Jones’ driving offences were low. It also seems that Dr Chaffey accepted Mr Jones’ statement to him that he had stopped taking drugs more than five years previously.  (We pause here to note that Mr Jones denies describing himself to Dr Chaffey as a “party boy” in this context and denies, as we set out below, ever taking drugs.)
THE LEGISLATIVE SCHEME
10.	Under the relevant regulations it is necessary to have a current medical certificate appropriate for the licence sought. In this case, the relevant medical certificates are those referred to under the regulations as Class 1 and Class 2.  These two certificates are dealt with under different regulations, found at Part 67 of the Civil Aviation Safety Regulations 1998 (“the CASR”) but the same test applies in each instance.  
11.	For the purposes of Part 67 of the CASR, a medically significant condition is “safety-relevant” if it reduces, or is likely to reduce, the ability of someone who has that condition to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.
12.	Regulation 67.180 of the CASR requires that a person undergo medical examinations and then CASA must consider (under reg 67.180(2)(e)) whether :
(e) either: 
      (i)  	the applicant meets the relevant medical standard; or 
	(ii) 	if the applicant does not meet that medical standard — the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation;
13.	That is, CASA will issue a medical certificate if the applicant meets the requirements.  If the applicant does not, CASA may yet issue the certificate if satisfied that doing so will not adversely affect the safety of air navigation.   In the latter case, it would not be unusual to see conditions imposed on the licence; the power to do that can be found in reg 67.195 of the CASR.   
14.	It will be noted that it is the questions addressed under reg 67.180(2)(e) of the CASR that identify the substantive issues in this case.
15.	 The standards for Class 1 medical certificates are found in the Table to reg 67.150 of the CASR, which makes provision (relevantly at items 1.5 and 1.6) in relation to “mental fitness”. A person must be able to show that they do not engage in any problematic use of substances, but where they do have such a history (and the words used at item 1.6 are “any personal history”) that person may yet obtain the certification if they demonstrate : 
(a)  abstinence, certified by an appropriate specialist medical practitioner; and  
(b)  no evidence of suffering from any safety‑relevant sequel; and
(c)  that they are undertaking, or have successfully completed, an appropriate course of therapy.
16.	We would also note here that the “substances” referred to include alcohol, cannabinoids, psycho-stimulants, hallucinogens, cocaine etc, but not coffee and tobacco.   
17.	Before leaving the legislative provisions, we would observe that by virtue of s 9A of the Civil Aviation Act 1988, when carrying out this review and exercising the powers under the Act and the CASR, this Tribunal, like CASA, must treat the safety of air navigation as “the most important consideration”.
MR JONES’ EVIDENCE
18.	We would firstly here return to the evidence as it relates to the filling out of the medical form at T5. Mr Jones now denies telling Dr Chaffey that he had taken amphetamines for a two year period.  He was certain that he had told Dr Chaffey about his convictions for supply, as this was part of obtaining a security clearance for an Aviation Identification (AVID), completed in 2008, for his student pilot licence. 
19.	The security clearance form asked, relevantly, about having any convictions or findings of guilt that were less than 10 years old.  Mr Jones nominated the offence of “supply dangerous drug” in 1999, for which he was placed on two years probation.  
20.	Mr Jones now denies, either now or in the past, having taken drugs.  He claims not to have given that history of usage to Dr Chaffey.  He was unable to explain how Dr C Rowan, no more than four months after the interview with Dr Chaffey, came to take a history that Mr Jones told him he had experimented with ecstasy seven or eight years previously but denied using marijuana, cocaine, amphetamines, heroin or benzodiazepine.  Mr Jones gave another history at Princess Alexandra Hospital on 9 September 2009.  There he reported using ecstasy on five or six occasions at the age of 19, but no other illicit substance abuse. 
21.	Since Mr Jones’ initial interview with Dr Chaffey, there has been one positive hair follicle test but others have been clear.  Mr Jones attributes the positive test to his consumption of coca tea which he purchases over the internet, and possibly to the use of American-sourced Vicks “VapoInhalers”.
THE MEDICAL EVIDENCE
22.	When Dr Chaffey gave oral evidence at the hearing, he said that in all his years of working as a DAME he had not come across anyone who had admitted to such a significant drug history as did Mr Jones.  Dr Chaffey said that he clearly remembered Mr Jones describing himself as “a party boy” because he thought that was “a brave call” in a medical interview of this kind.  Dr Chaffey confirmed that Mr Jones told him he was a party user of both cocaine and methamphetamines, about every three months for a period of five years. 
23.	Dr Chaffey agreed that many young people experiment with drugs, but said it is rarer to see such experimentation include drugs such as ecstasy and cocaine.
24.	On 10 February 2009, Dr Chaffey rang Mr Jones and advised him about the positive hair test. He asked Mr Jones whether it was possible that he had taken other medication. Dr Chaffey said he recalled that the story given by Mr Jones changed throughout the course of the telephone conversation. 
25.	Professor OH Drummer, Head of Forensic Scientific Services of the Department of Forensic Medicine, Monash University, explained the process of testing hair for substances.  He told us that after collection, the hair sample is washed, dried and then drugs are extracted from the hair. There is very little correlation between the amounts detected in the hair and the amount of substance ingestion. A low concentration of a drug (and he observed Mr Jones’ result was in the low range) could mean that there were repeated low exposures; alternatively, the same result could be generated by one or two large exposures. A high concentration of drug detected could mean that there was regular, almost daily use.  Professor Drummer said that it is known that coca tea contains traces of cocaine.
26.	Professor Drummer confirmed that the Vicks VapoInhaler sold in America and the coca tea imported from South America could both be responsible for the positive hair test.  Professor Drummer said that little was known about these substances, and he could not say how much of either product would need to be consumed to test positive. 
27.	 Dr I Hosegood, former Principal Medical Officer of CASA, agreed that coca tea and American purchased Vicks VapoInhaler could result in a positive hair test. Dr Hosegood explained there are isomer tests that can differentiate between Vicks VapoInhaler and methamphetamine. Dr P Navathe, Principal Medical Officer at CASA, acknowledged to us that these isomer tests are not available to CASA.
28.	Dr Rowan reported to Dr Chaffey on 22 June 2009.  It is apparent from his report that Dr Rowan accepted that Mr Jones’ alcohol related driving offences were connected to his increased alcohol consumption at a time of a stressful personal relationship.  Although Dr Rowan seemed to have accepted what Mr Jones had told him about no longer taking drugs, he considered that the positive hair follicle test tended to indicate otherwise. He stated he would not support Mr Jones’ CASA application.  Later, however, he changed his mind and indicated that he was prepared to offer ongoing reviews accepting, it seems, Mr Jones’ insistence that he was not partaking of illicit substances.
DOES MR JONES HAVE A “SAFETY-RELEVANT” MEDICAL CONDITION?
29.	With regard to this question, we were satisfied that Mr Jones has a past history of substance abuse, whatever may be the case now.  In that regard we do not accept his total denial of any drug taking.  To do so would be to accept that several doctors have taken inaccurate histories—we regard that as most unlikely. 
30.	Mr Jones’ father asserted that it was for CASA to prove that his son had taken drugs.   It was part of Mr Jones’ case that there was only evidence of “supply”, not taking.  We do not agree that CASA has to prove the case in that way.  We prefer the evidence of the doctors who have taken the histories at the time.  We have no reason to believe that they were inaccurate.
31.	We had the advantage of being able to question Dr Chaffey.  We were quite satisfied that he had a good recall of his interview with Mr Jones, and that his was a balanced approach to considering the medical evidence.  There might be minor errors in his report, as he readily acknowledged, but this does not detract from the admission by Mr Jones at T5 of having taken drugs.   
32.	We found Mr Jones to be a professional and experienced young man, not a person who would have been overborne or harried into signing something that he did not agree with.  He is a property developer on the Gold Coast, and that suggests some familiarity with mixing in the business world at least.
33.	In terms of the criteria set out in Item 1.6 (reg 67.150 of the CASR) we are satisfied that there is a “history of problematic use of a substance” in this case.  The facts here raise genuine concerns about Mr Jones’ honesty in reporting his drug history to doctors.  We were not convinced that we could rely on his evidence about his consumption of illicit substances.  This was not simply because we prefer the evidence of the doctors (who took down the histories) over Mr Jones’ account to us that he has never taken drugs.  It is also because Mr Jones gave different accounts of what he took and when in at least three instances.  We are unable to be confident that there is the level of abstinence claimed.
34.	In that regard the evidence of the CASA medical witnesses Dr Navathe and Dr DJP Fitzgerald, Senior Medical Officer in the Aviation Medicine Section, is relevant.  They expressed the view that it was problematic from the perspective of safety that Mr Jones had admitted drug use to doctors and later withdrawn the statements.  They said this suggested that Mr Jones may lack insight.  Both doctors explained that “insight” is a word commonly used by doctors to describe a person’s self awareness and understanding of the nature, consequences and severity of their problems.  According to Dr Navathe, Mr Jones’ inconsistent history-telling suggests the he has no self-awareness of his problem, which can be a bar to dealing with the problem itself.  Dr Fitzgerald suggested that there was a higher risk of “re-using” if a person lacks insight.
35.	Dr Navathe said that even if Mr Jones had never taken illicit drugs, the fact that he told so many doctors that he had was, in itself, a “yellow flag” that suggested he may have psychiatric problems. 
36.	We note that there was no substantial evidence that Mr Jones has undertaken, or successfully completed, an appropriate course of therapy.  Mr Jones submitted that there was such evidence available in the report of Dr D Nowland, psychologist; however this “report” provides no more than a list of dates, all from 2004. Mr Jones indicated in his evidence that the counselling involved was with reference to relationship problems he was having at the time.  We thought fanciful the suggestion made by his father that this was counselling in relation to the drink driving issues (those predating the counselling by some years). Rather, we accept the evidence in T5 that Mr Jones had told Dr Chaffey he had had no treatment.
37.	We note that CASA offered Mr Jones a protocol, which included a requirement that he successfully complete an appropriate course of rehabilitation, but that Mr Jones declined this.
38.	In the context of reg 67.150 of the CASR, the pertinent safety-relevant condition is one that produces any degree of functional incapacity or risk of incapacitation.
39.	We are satisfied that the evidence confirms that Mr Jones has a history of substance abuse, reflected in drug taking and in the occurrence of alcohol related offences in the past.  The evidence of his current alcohol pattern was unclear.  However we do note that Dr Rowan referred to his drinking as sometimes at “physically hazardous levels”.
IS THE EXTENT TO WHICH MR JONES FAILS TO MEET THE STANDARD LIKELY TO ENDANGER SAFETY?
40.	We would here mention in more detail the evidence of the CASA doctors, especially with reference to the procedures for aviation medical certification. This was explained to us by Dr Navathe as follows. Medical practitioners who have completed a CASA approved course can register as DAMEs.  All applicants for medical certificates are first examined by a DAME, who then conducts an interview and sends a report to CASA. If any questions need to be addressed by a medical officer, the matter is referred to a senior medical officer in CASA. If the matter is trivial, such as controlled blood pressure, the senior medical officer may issue a certificate. If the matter is complex a complete case management procedure is initiated, with all three full-time senior medical officers in CASA reviewing the master file. Once a week the medical team has a meeting and these complex matters are discussed, all medical officers contributing to the decision-making.
41.	Risk management in aviation is separated into many systems. Dr Navathe referred to the pilot as being one of the many systems in an aircraft. A medical condition is regarded as significant if it is likely that it will reduce the ability of the pilot to exercise the privileges of a licence. We note in that regard that “medically significant condition” is defined in the CASR at reg 67.010 and can include any illness or injury (no matter how minor) and, specifically, at sub-clause (c) of the definition, any drug addiction and drug dependence.
42.	Mr Jones submitted that that the drink driving offences were minor, recorded at a relatively low blood alcohol level on all occasions, and that all convictions were more than ten years ago. Dr Navathe informed us that statistical studies show that persons who have more than two DUI convictions have an increased risk of aviation accidents.  Mr Jones disputed the relevance of these studies based on blood alcohol levels in the United States because these vary from state to state and are not necessarily the same as that in Australia.  Dr Navathe agreed that the studies were performed in America, and that the blood alcohol levels necessary for a DUI charge varies from state to state in America, and may not be the same as that in Australia. Dr Navathe said these are of no consequence, as the significant factor was the frequency of DUI charges, not the blood alcohol level. Frequency of DUI charges is a measure of the person’s degree of risk taking. There is a real likelihood that a person with multiple DUI charges has driven whilst under the influence on multiple occasions, not just at the time they were charged.  We accept that evidence.
43.	Dr Navathe explained that the decisions about mental fitness to fly involve shades of grey; there are no absolutes.  Dr Navathe said the “yellow flag” was raised in terms of air safety issues by Mr Jones’ history of illicit substance use in light of the published statistics indicating that substance users present a higher risk of aviation incidents.  We were presented with substantial research in that regard, but it is difficult to translate that prescriptively into Mr Jones’ case.  We have here evidence that suggests that Mr Jones might be on the lower end of the scale, in terms of his intake.  We must bear in mind that the alcohol related offences were as a young man, not long past his teenage years, and that the objective evidence of current drug consumption is, at best, equivocal.  
44.	However the case law suggests that although the percentage risk might be on the low side, the fact that a person is a greater risk than the general aviator population is the appropriate focus.  As the Tribunal in Re Hall and Civil Aviation Safety Authority [2004] AATA 21 observed (at para 45), when issues of air safety are under consideration, a small risk may be sufficient to trigger the need to take appropriate action to address the risk.
45.	We accept the respondent’s submission that in the absence of Mr Jones undertaking a course of rehabilitation, the necessary level of confidence in terms of safety cannot be met.  Even the doctors who have considered it would be possible to give Mr Jones a certification under what Dr Chaffey refers to as “the umbrella of frequent random testing”, clearly regard Mr Jones’ as not a straightforward case.  The conclusions of Dr Chaffey and Dr Rowan on that point oscillated.  We were inclined to agree with a point made by Dr Navathe in his evidence that Dr Rowan was competent to give evidence in regard to addiction problems, but his was not the appropriate speciality for giving opinions about suitability for an aviation licence (an area of expertise of occupational physicians cognisant of matters relating to aviation risks). 
46.	In the end we concluded that as we are required to give the question of air safety primary consideration, the question “Is the extent to which Mr Jones fails to meet the standard likely to endanger safety?” ought to be answered “Yes”.
WHETHER ANY CONDITIONS COULD BE IMPOSED
47.	We were not persuaded, in the absence of a documented rehabilitation programme appropriate to the drug and alcohol history here, that any conditions imposed on the certificate would countermand the risk to air safety. 
DECISION
48.	The Tribunal affirms the decision under review.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of MJ Carstairs, Senior Member and Dr M Denovan, Member.

Signed:   ......................[Sgd].....................................
		Mátyás Kochárdy, Associate

Dates of Hearing	26 & 27 July 2010; 5 August 2010 
Date of Decision	15 October 2010 
Advocate for the Applicant	Mr D Jones
Counsel for the Respondent	Miss E Ford 
Solicitor for the Respondent	Civil Aviation Authority, Legal Services Group