The Administrative Appeals Tribunal recently affirmed a decision by CASA to refuse a licence to a pilot who suffered an epileptic seizure during a solo flight.
The Tribunal accepted CASA’s position that the risk posed by an epileptic pilot was too great to meet the requirements for a conditional Class 2 medical certificate, and also accepted the medical risk was too high for a licence condition that the pilot only fly alongside a licensed pilot in a dual controlled aircraft.
Facts
Mr Robey had accrued 12,018 flying hours and was endorsed to operate eleven kinds of aircraft, when he suffered a seizure during a solo flight in 2009. It took about 20 minutes for Mr Robey to regain consciousness while in the air, after which he successfully completed an approach and landing at Bankstown Airport.
Post seizure, Mr Robey was grounded. CASA informed him that he did not meet the requirements for a Class 1 or 2 medical certificate under the Civil Aviation Safety Regulations[1] 1998, as he had a history of seizure disorder and was ‘at risk of further seizures’ which created ‘a significant risk to flight safety’.
In 2018, Mr Robey had been seizure-free for 7 years, medication-free for 13 months and had been cleared for an unrestricted driver’s licence. He applied to CASA for a conditional Class 2 medical certificate to allow him to command a plane again. He said his risk could be mitigated by making his licence conditional on having a licensed, endorsed pilot in the second control seat. This application was rejected by CASA, and Mr Robey sought review of the decision by the Tribunal.
The Tribunal heard evidence from a neurologist and concluded that he had not reached the stage for a determination that he no longer suffered from epilepsy, using the criteria recommended by the peak professional body of epilepsy specialists. Those criteria required that a person experience no seizures for 10 years and have taken no anti-epileptic medication within the last five years.
CASA submitted that:
- the normally acceptable risk for a private pilot seeking a Class 2 medical certificate was in the range of 2% to 5% with some conditions being placed on pilots above the lower limit; and
- the decision to issue a certificate was ultimately made on the basis of whether there was a real and substantial (and not trivial) risk to the safety of air navigation.
The Tribunal accepted CASA’s submission that there was a higher than 5% chance annually of Mr Robey suffering an incapacitating event.
The Tribunal also found that there was a real risk regarding Mr Robey’s “potential or partial complete physical incapacitation, seizure, disorientation, memory loss, and/or impaired awareness of surroundings”.
Mr Robey submitted that this risk could be mitigated by conditions that he not pilot aircraft during take-off or landing. The Tribunal concluded that any conditions imposed on a medical certificate would be insufficient to mitigate the risks which Mr Robey’s current condition posed to safe aviation. In this case, because Mr Robey’s risk of a seizure (around 9.6%) was outside the risk levels in CASA’s guidelines (2% to 5%) for the issue of a Class 2 medical certificate, licence conditions would be inadequate to address the risk created by his condition.
Commentary
As with its decision in Matthews v Civil Aviation Safety Authority [2020] AATA 1163 (discussed in our 27 July 2020 bulletin), this recent decision reminds pilots and aviation operators that safety is paramount in pilot licensing.
Licence conditions can reduce risks arising from medical conditions. However, when the onset and adverse effects of a medical condition (such as epilepsy) are difficult to predict, licence conditions may be insufficient to reduce the risk which the conditions pose to safe aviation.
[1]Civil Aviation Safety Regulations 1998 (CASA) regs 67.150.1.7, 67.155.2.7
