The Administrative Appeals Tribunal (AAT) allowed an application for review of the Civil Aviation Safety Authority’s (CASA) decision to refuse to issue the applicant with either a Class 1 or Class 2 medical certificate.
The AAT set aside the decision under review and remitted it to CASA for reconsideration with a direction that the applicant did not fail to satisfy the safety relevant consideration or medication criterion by reason of his Attention Deficit Hyperactivity Disorder (ADHD), his use of Ritalin or a combination of these factors.
As the AAT’s decisions turn upon their individual facts and evidence, its decision on two factors involved in the medical certification process does not mean that a diagnosis of ADHD is no longer fatal to an application for a Class 1 or Class 2 medical certificate.
However, given the recent amount of media coverage to neurodiversity, particularly in workplaces, the decision illustrates the interaction between conditions such as ADHD and aviation licensing regulations.
Facts
The applicant had held a Class 1 medical certificate which expired in June 2018.
In November 2020, the applicant (aged 32) was diagnosed with ADHD (inattentive type) by Dr Tofler, a psychiatrist, and prescribed Ritalin.
The applicant also held a class 2 medical certificate which was suspended in January 2021 and cancelled in March 2021.
In November 2021 the applicant applied for a Class 1 and Class 2 medical certificate. Under Civil Aviation Safety Regulation (CASR) 67.180(2), CASA must issue the certificates if the applicant meets the requirements set out in that regulation.
In August 2022, CASA declined to issue the certificates. The applicant applied to the AAT for a review of CASA’s decision to refuse to issue him with either a Class 1 (commercial pilot) or Class 2 (private pilot) medical certificate.
The AAT’s decision
The AAT noted that CASR 11.055 provided that a medical certificate may only be issued if it would not be likely to have an adverse effect upon the safety of air navigation. The AAT further noted that the issues to be considered in whether to issue a medical certificate to the applicant were:
- Whether he met the medical standard for the issue of a Class 1 and Class 2 medical certificate;
- If not, whether the extent to which he failed to meet the medical standard was not likely to endanger the safety of air navigation; and
- If so, whether any conditions could be imposed upon the medical certificate to mitigate the threat to air safety posed by the shortcoming, so it was no longer likely to endanger the safety of air navigation.
The Tribunal’s review focused upon whether the applicant satisfied two criteria relating to the medical standards:
- The ‘safety relevant condition’ criterion – which required that the applicant have no condition that produces any degree of functional incapacity or risk of incapacitation; and
- The ‘medication’ criterion – which required that the applicant not be using any medication (including medication used to treat a disease or medical disorder which caused him to experience side effects to an extent that is safety relevant).
The AAT noted that that because safety in air navigation was the most important object of the Civil Aviation Act 1988 (Cth) and the CASR, a cautious approach must be undertaken. This meant that if there was any ambiguity or uncertainty regarding an applicant’s medical condition, it should err on the side of caution.
The applicant led evidence from a psychiatrist (Dr Tofler) and neuropsychologist (Dr Bourke) and CASA called evidence from a psychiatrist (Dr Atherton) and its senior medical officer (Dr Sharma).
In reaching its decision, the AAT noted the following relevant matters:
- The effects of the applicant’s ADHD were mild;
- CASA was not contending that the effects of the applicant’s ADHD, of itself, did not result in a failure to satisfy the ‘safety relevant’ criteria;
- CASA’s clinical practice guidelines suggested that untreated ADHD would not preclude a medical certificate being issued, at least where both symptoms and treatment had been absent for 6 months; and
- Dr Atherton’s evidence that psychological cognitive assessments demonstrated no difference between the applicant’s pre-treatment and post-treatment performance.
In view of these matters, the AAT was not satisfied that the side-effects of Ritalin were ‘safety relevant’.
The Tribunal concluded that the applicant had not failed to satisfy the safety relevant condition criteria or the medication criteria and remitted the decision to CASA to consider the remaining criteria prescribed in the CASR.
Commentary
The decision provides useful guidance for pilots and aviation operators regarding the approach to be taken in considering the interaction between neurological conditions (such as ADHD) and aviation licensing regulations. Aviation safety will be paramount in this assessment. In particular, the decision illustrates that:
- An applicant is entitled to the benefit of an obligation for an aviation medical certificate to be issued. However, this is subject to the qualification that the medical standards prescribed in the CASR are met;
- A diagnosis of a condition such as ADHD is not inevitably fatal to an application for an aviation medical certificate. The grant of a certificate will depend upon the relevant facts and medical evidence relating to each application; and
- Where there is any ambiguity or uncertainty regarding an applicant’s medical condition and its effect upon the safety of air navigation, decisionmakers should err on the side of caution.
This article was written by Jayne Heatley, Partner and James McIntyre, Special Counsel.
