The Federal Court of Australia recently dismissed an appeal against a decision of the Administrative Review Tribunal (ART) which affirmed a decision of the Civil Aviation Safety Authority (CASA) refusing to issue him a medical certificate. The applicant pilot had a diagnosed condition of Attention Deficit Hyperactivity Disorder (ADHD) and his treatment involved daily doses of methylphenidate (Ritalin).

The Court confirmed that CASA may refuse to issue a medical certificate even where Part 67 medical standards are met, if residual safety concerns remain.

Facts

An earlier ART decision found that the applicant satisfied the criteria for the issue of a Class 1 (commercial pilot) or Class 2 (private pilot) medical certificate under regulation 67.155 of the Civil Aviation Safety Regulations 1998 (Cth) (CASR) and remitted the matter to CASA for reconsideration with a direction that ‘the applicant does not fail to satisfy the safety relevant condition criterion or medication criterion by reason of his ADHD, his use of Ritalin or combination thereof‘.

Please click here if you wish to read our bulletin on the earlier ART decision.

CASA on remitter, and the ART on further review (the Second Tribunal), were satisfied that the issuing of a medical certificate to the applicant was likely to have an adverse effect upon the safety of air navigation and refused to issue a certificate, having regard to regulation 11.055 of the CASR.

The applicant appealed to the Federal Court.

The Federal Court Decision

The Court considered whether regulation 11.055(1A) (e) permits CASA to refuse to issue a medical certificate on aviation safety grounds after an applicant has satisfied the specific medical criteria in regulation 67.

Regulation 11.055 relevantly provides:

(1A) Subject to subregulations (1B) and (1C), if a person has applied for an authorisation in accordance with these Regulations, CASA may grant the authorisation only if.

1. the person meets the criteria specified in these Regulations for the grant of the authorisation; and
2. any other requirements in relation to the person that are specified in these Regulations for the grant of the authorisation are met; and
3. any other requirements in relation to the thing in respect of which the application is made that are specified in these Regulations for the grant of the authorisation are met; and
4. these Regulations do not forbid CASA granting the authorisation in the particular case; and
5. granting the authorisation would not be likely to have an adverse effect on the safety of air navigation.

The applicant argued that:

• the regulation was concerned only with matters of fitness and propriety to hold the authorisation and did not confer unfettered discretion after the relevant provisions relating to medical standards (regulation 67.180) had been satisfied; and
• accordingly, if regulation 67.180 had been satisfied, regulation 11.055 did not provide CASA with power to refuse to issue a medical certificate on grounds relating to his use of Ritalin.

The Court made the following relevant observations:

• The medical standard is not the only prerequisite to the issue of a medical certificate. Regulation 67.180(1) expressly states that CASA’s obligation to issue a medical certificate is subject to regulation 11.055.
• Given the medical standards are specific and detailed, they may not address every medical related risk to the safety of air navigation. Accordingly, there may be a need for a residual power for CASA to refuse to grant a medical certificate if doing so would be inconsistent with regulation 11.055.
• Regulation 11.055(4)(i) provides that CASA may have to having regard to ‘any other matter relating to the fitness of the applicant to hold the authorisation’. Having regard to the Regulations in their totality, medical matters over and above those prescribed by the medical standards.
• The Regulations should be construed in accordance with the Act pursuant to which they are made, namely the Civil Aviation Safety Act 1988 (Cth). Section 9 directs CASA to regard the safety of air navigation as the most important consideration in exercising its powers and functions. The applicant did not contest the factual conclusions reached by the ART that it was not known whether exposure to high altitudes influences the metabolisation of methylphenidate so that the risk to the safety of air navigation could neither be evaluated nor managed.

The Court found that the Second Tribunal did not err in its construction of regulation 11.055 as contended by the applicant.

Accordingly, the Court dismissed the applicant’s appeal.

Commentary

The decision provides useful guidance for pilots and aviation operators regarding the interpretation of the CASR in aviation licensing decisions, particularly with regard to neurological conditions (such as ADHD). In particular, the decision illustrates that:

1. aviation safety will be paramount in licensing decisions;
2. where there is any ambiguity or uncertainty regarding an applicant’s medical condition (even if it is apparently well managed) and its effect upon the safety of air navigation, decision-makers may lawfully refuse certification where unresolved risk or uncertainty remains; and
3. Regulation 11.055 provides CASA with residual power to refuse to issue a medical certificate even if the specific medical requirements of regulation 67.180 have been met.

This article was written by Matthew Brooks, Partner, and James McIntyre, Special Counsel.