[Peetwo]

Avmed threatens DAMEs with possible liability? - 

Heard some disturbing tales about the following issue coming out of Avmed, from Oz Flying -  :

CASA warns DAMEs about Medical Assessments
17 August 2018

Outgoing CASA Principal Medical Officer Michael Drane has warned Designated Aviation Medical Examiners (DAME) that they may be subject to liability issues should their assessment be legally challenged.

Writing in his August newsletter to DAMEs, Drane said that although there had not been issues with DAME-assessed medicals so far, DAMEs needed to take care when assessing candidates for aviation medicals. 

"There have been 475 [DAME-assessed medicals] completed since March, and most have been fine," Drane said. "However, please remember to follow the CASA eLearning guidance and Clinical Practice Guidelines to ensure you include sufficient information when making your assessment and record it clearly.

"It’s important that you clearly note the basis for your decision and whether further monitoring is required. Remember there’s a reason certain reports are requested and your decision needs to stand up to scrutiny in settings such as the Administrative Appeals Tribunal (AAT).

"Decisions failing in these areas may present medicolegal liabilities for the assessing doctor."

Up until 3 April this year, most DAMEs would perform the examination for a medical certificate, but CASA would assess the results and issue the certificate based on the DAME report. Only those examiners designated as a DAME2 would assess and issue the certificate themselves.

Under reforms instigated by CASA Director of Aviation Safety Shane Carmody this year, all DAMEs can now do the assessment themselves, but still have the option to refer the candidate to CASA if they wish.

Read more at http://www.australianflying.com.au/lates...x2gowDU.99

MTF...P2 

[Peetwo]

Embuggerance thru rumour & innuendo?   

From Ironsider in the Oz today...  

Pilot blames CASA for licence loss
ROBYN IRONSIDE
A Qantas pilot is suing the Civil Aviation Safety Authority for defamation for sharing damaging ‘anonymous complaint’.

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A Qantas pilot is suing the Civil Aviation Safety Authority for defamation over a damaging “anonymous complaint” that was shared with management and other senior pilots, leading to his ­licence being suspended.

Nathaniel Whitehall, 49, who is a second officer on Qantas A380s, filed the claim in the District Court of NSW on Friday, naming CASA as the respondent.

Mr Whitehall claims a neighbour with whom he clashed used CASA’s confidential and anonymous ­online ­reporting system to make a series of complaints in May, July and ­August last year.

The complaint claimed Mr Whitehall had a mental health condition and likened him to the pilot of the Germanwings aircraft that was deliberately crashed into the French Alps in 2015, killing all 150 people on board.

As a second officer, Mr Whitehall would never be in the cockpit alone on an A380 and is not permitted to fly under 10,000 feet.

Mr Whitehall alleges his pilot’s licence was suspended by CASA in October without him being given the opportunity to defend himself or prove the accusations made by his neighbour were false.

He applied to the Administrative Appeals Tribunal to have his suspension overturned but a hearing is yet to be held.

Mr Whitehall also claims in documents submitted to the court that CASA “published the reports in their entirety to the ­applicant’s employer, Qantas Airways Limited”.

“By reason of the publication of the matters complained of, (Mr Whitehall) has been injured in his credit, character, reputation and profession and has been brought into public disrepute, professional disrepute, scandal, odium and contempt,” the claim said.

“(Mr Whitehall) claims general damages, together with interest, for consolation, reparation and vindication, and special damages for the loss of income in his profession as an airline pilot.”

In a letter to opposition transport spokesman Anthony Albanese, seen by The Australian, Mr Whitehall said he worked very hard to achieve a “spot” in Qantas, “which is quite literally the pinnacle of aviation”.

“I have not done anything wrong. I have worked hard at Qantas. My Qantas record is ­unimpeachable,” he writes.

A CASA spokesman said the authority would not comment on the medical fitness of individuals or cases in which it may be a party.

Regarding the confidential and anonymous reporting system, the spokesman said that following the Germanwings tragedy, CASA had streamlined the process for handling reports of safety concerns ­involving pilots.

“These processes include making contact with the person who is the subject of a report, with a CASA medical officer normally telephoning the individual involved,” he said.

“Depending on the circumstances and in the interests of ­safety, CASA may initiate certain action on a precautionary basis.”

The CASA spokesman said if action were taken to vary, suspend or cancel a person’s medical certificate or any other authorisation, the individual involved would be formally notified.

CASA has launched legal ­action to force Mr Whitehall to ­return copies of the “confidential complaints” relating to him, on the basis that he was not entitled to have them.

Mr Whitehall denies any wrongdoing.

A Qantas spokesman said the defamation action did not directly involve the airline and the company did not comment on individual employee matters.

MTF...P2 

[Gobbledock]

Dear oh dear, a potential German Wings fruitcake working for Qantas? Surely Miniscule Dutton would be eagerly introducing some draconinan security standards upon which Qantas must act? An additional AMS Inspector in the jump seat for each flight? Retinal scams, bipolar tests and testees squeezed before each flight? Perhaps a CAsA FOI in the jump seat for each flight? Or is the Rat just being treated with special gloves?

I wonder who checks the complaints made against the mental health of CAsA staff? I’ve never heard of a CAsA employee getting punted for being a complete fruitcake, and there has been many nut jobs working there over the years!!

As for the pilot in question and the allegations made by his neighbour, if the allegations aren’t true and the rumours being spread are vexatious then the best way to deal with a piece of shit neighbour like that involves $500 and a baseball bat. Problem fixed.

As for CAsA wanting their paperwork returned, tell them to jam it up there ass. I’m sure the paperwork has since been ‘lost’, or copies have been returned.

TICK TOCK

[IOS+BRB]

‘We’ decided to take a hand in this rubber; the tale above is a shameful episode, so ‘we’ signed up. This sort of thing has been going on for far too long and very clearly defines the attitude of and stance taken by the CASA.; while reflecting the fear engendered by the ever present threat and cost of a defence to disprove the allegations. It is up to the prosecution to make the case, and prove it – beyond reasonable doubt. Without ‘evidence’ to support the claim – it’s bullshit.

Can the neighbour or even the demi-gods of CASA prove, beyond doubt, with evidence solid enough to sway the court that this guy is, or ever has been a ‘risk’?

An unqualified ‘say-so’ and the mans life is destroyed. His work is questioned, his home life becomes focussed on ‘the case’ and his reputation, despite winning will never be quite the same. It is wrong.

No more to say - but 'we' are paying attention.

[Peetwo]

POTM: Clinton Mckenzie off the UP -    

Clinton McKenzie (aka Creampuff, aka Lead Balloon) writes a long but essential read for all those aviators who hold or intend to obtain a CASA approved pilot medical:
https://www.pprune.org/pacific-general-a...lator.html

CASA Avmed – In my opinion, a biased, intellectually dishonest regulator

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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:

CASA’s approach would seem a little heavy handed – consistent with their past history, but disappointing nonetheless.

…My professional opinion is that I do not consider you a risk of incapacitation now that the lesion has been treated. I would consider you safe to fly for daytime VFR PPL flying. I would not consider you fit for a class 1 medical or professional flying for a longer period, however.


… Having discussed the situation with Dr [X, radiologist], he agrees.

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:

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.

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:

It should be noted that the Applicant can at any time submit further medical evidence in support of his contention that he is currently fit to fly and that will be reviewed by Avmed.

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 whetherCASA 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 solicitor in these terms, with my underlining:

I request that the delegate confirm, in writing, whether or not s/he will consider and review the substance of medical evidence submitted to CASA, and make actual risk assessments from time-to-time based on that evidence, [u]during the specified 12 month period[/u].

CASA’s solicitor 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 solicitor 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:

Is Avmed’s present position that the results of a CT scan now could potentially convince Avmed of my compliance with the class 2 medical standard, at least to conduct day VFR operations?

The answer to that was given on 7 November:

[A] simple CT scan I am informed may be unable to provide sufficient detail for future assessment purposes.

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:

28. Based on the available review of scientific literature…”
…
33. Accordingly, I consider the lack of evidence provided by the Applicant, coupled with the known high likelihood of recurrence…

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 that was treated is an objective truth by the same decision-maker). The “known high likelihood of occurrence” 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 an 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:

Long gone are the days when Avmed relied on the opinions of treating specialists.

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.

While on the subject of Clinton McKenzie and the the obviously still incompetent and draconian CASA Avmed: Many industry participants would be aware of Clinton McKenzie's condemnation for the illogical, bizarre, non-evidence based CASA Avmed embuggerance of colour vision defective (CVD) pilots and his subsequent support/advocacy for the CVDPA:  e.g. Creampuff on Pprune: https://www.pprune.org/pacific-general-a...ost8496148

A triumph of prejudice, dressed up as ‘safety’

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Senator FAWCETT: Dr Navathe, there are two confounds with that approach. One very simple example is that in my past at military college they used to have language aptitude tests, theoretically derived tests. Our counterparts from countries in Asia were not normally sitting those. A Chinese origin Singaporean student sat the test, failed dismally, was told he had no aptitude for tonal languages. The similar confound for you is that pilots who had been safely flying for tens of thousands of hours have failed the CAD test and yet have demonstrated their ability to safely operate aircraft in not just one test but multiple check and training tests with multiple instructors.


So if the contention that Mr McCormick made is that CASA approached this on an individual capacity basis, as opposed to one rule, then you cannot discount the fact that a theoretical test will not necessarily determine an individual's ability to use other cues to operate an aircraft safely. You mentioned that they looked at internal and external lights. It is a proven fact that in aircraft that are modified for night vision imaging systems, where all the emitted light is filtered with something like a BG7 filter, the colour hierarchies are completely disrupted and yet air crew in fixed wing and rotary wing aircraft, normal colour pilots, quite safely operate those aircraft in terms of interpreting that internal information. Likewise with external information—the human body adapts. There are things like hypersteriopsis. For years we have said that that would make it impossible to fly, yet the body adapts to that. So what you are seeing, in the case of this pilot—I understand you attempted in 2009 to not renew his medical, but subsequently you gave it back to him to continue flying as a captain in an ATPL situation—is that he has not passed the CAD test but demonstrates that he as an individual is able to competently fly an aircraft by day, by night, in IFR conditions. From the point of view of procedural fairness and natural justice, is it a good use of taxpayers' money to take these issues through to well over $100,000 in an AAT hearing when there are proven methods of establishing the competence of an individual to operate an aircraft?

Mr McCormick: We do not know what the sum of money involved is but we will go with what you are saying at the moment. The overriding principle here, whether it is colour vision deficiency, hearing deficiency or any sort of impairment on the pilot, is safety. We are talking about going towards an ATPL, when there is no standard of which we are aware for issuing an ATPL anywhere in the world, for what would be the benefit of a number of pilots—I think we are talking about a few hundred pilots in total. I agree they should be able to do the best they can in their career but our responsibility is to maintain the safety of the Australian travelling public. When we get to the point where we are pushing the boundaries, where we are pushing the science, looking for other ways to get around what could possibility be indicated from the clinical side is a dangerous thing to do, we are starting to impact on my ability to discharge my duties under section 9 of the Civil Aviation Act, and that is to provide safety as outlined in that act.

If we wish to go there, then we have to go there in a measured manner. We will not go there on one basic flight test. I am sorry, but we will research this as much as necessary and, with all due respect, I will not be issuing an ATPL to a person who has failed the test as outlined in 67. We intend to do nothing with those who already have their licence and have their privileges. We are writing to them, as I mentioned to you the other day, to say that if they have had some change in their vision or if they think something has changed that will affect them, then perhaps they should discuss it with their own doctor or with their own DAME. I agree we should move forward, but we are already way out in front of half of the world, if not three-quarters or all the world, and as we move forward we will do it at a measured pace. When O'Brien goes through the AAT, we will see what the AAT has to say, what their preferred decision is, and that will give us the basis from which we can move forward, whether it be a practical test or whether it be a clinical test or whatever combination is required. To do it now unilaterally would be dangerous.

[Bolding added to substantive text.]

“Dangerous”.

I am reminded of this, from Carl Sagan (with evident geographical amendments):

I have a foreboding of an Australian in my children's or grandchildren's time -- when Australia is a service and information economy; when nearly all the manufacturing industries have slipped away to other countries; when awesome technological powers are in the hands of a very few, and no one representing the public interest can even grasp the issues; when the people have lost the ability to set their own agendas or knowledgeably question those in authority; when, clutching our crystals and nervously consulting our horoscopes, our critical faculties in decline, unable to distinguish between what feels good and what's true, we slide, almost without noticing, back into superstition and darkness...

The dumbing down of Australia is most evident in the slow decay of substantive content in the enormously influential media, the 30 second sound bites (now down to 10 seconds or less), lowest common denominator programming, credulous presentations on pseudoscience and superstition, but especially a kind of celebration of ignorance.
When something is curtailed in the name of ‘safety’ and labelled ‘dangerous’, despite decades and tens of thousands of flying hours of evidence demonstrating the opposite, it appears someone is having difficulty distinguishing between what feels goods and what’s true. 

The ‘precautionary principle’ has been described as the celebration of ignorance. But here, the regulator can’t even hide beyond the fear of the unknown. The results of the CVD experiment are already ‘in’. There is less risk of CVD causing an accident than appendicitis causing an accident. Yet pilots are allowed to fly around with a ticking time bomb inside them in the form of an appendix. 

This goes beyond a celebration of ignorance. It is the triumph of the last remnants of prejudice against people ‘who shouldn’t be allowed to fly’ because we ‘feel’ it would be ‘safer’ if they didn’t. 

Therefore it was with interest that I read Clinton McKenzies submission to CASA's Medical Certification DP 1707AM (ref: https://www.casa.gov.au/standard-page/re...sion-paper & https://www.casa.gov.au/files/medicalsdp...onredacted )

Keeping in mind that the CM submission was received by CASA some 7 months prior to his health and subsequent CASA Avmed pilot medical issues; the following is copied extracts from pages 2 to 7 of his submission:

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In retrospect I wonder if CM's Avmed woes may have been exacerbated by his strong advocacy for the plight of the CVD pilots and indeed any matter where CASA exert their discriminatory, draconian, non-evidence, non-risk based, regulatory authority on some poor unsuspecting (circle appropriate) pilot/engineer/operator -     
    

MTF...P2 

Ps For my nomination for AP QOTM - 

[Sandy Reith]

Thank you to Clinton McKenzie for making your case, and the wider implications ably and comprehensively put, available publicly. A logical and thoroughly well informed argument for a rational approach to the many ills of Australian aviation. I think quite correctly Clinton McKenzie has made the crucial point that in reality the degree of regulation for safety is a matter of politics, therefore this is the responsibility of our elected representatives. Unfortunately we continue to labour under a failed model of governance, the independent regulator. Until Parliament can be persuaded to exert control over it’s runaway bureaucracy then expect worse to come.

[Kharon]

Long gone are the days when Avmed relied on the opinions of treating specialists.

There is probably no better case study available to demonstrate the dire need for a reform of not only the ‘Avmed’ system; but also the reform of the Regulatory system in it’s entirety. The almost unbelievable antics of those involved in the Avmed system provide a clear picture of a failed philosophy, stumbling along it’s merry pathway to self destruction. Reflecting the legal and operational lunacy the current system imposes. The CASA is so deeply mired in the game of avoiding any and all challenges to their ‘above the law’ status that the common sense approach and practical application of ‘safety’ rules have become little more than a self incriminating, iron clad platform from which a successful conviction may be achieved.

Clinton has taken a very sensible stand; happily, he is able to match legal wits with CASA legal and, by making the case public, has avoided the certain fate of those who have won the battle, but lost the war. One of the most heinous results of challenging CASA is the ongoing persecution of those who managed to escape the first skirmish unscathed, only the be marked for later attention. This, standing alone makes for unsafe practices to be masked behind ‘box ticking’ and a reluctance to step up or speak out. For example, a reluctance to mention even any medical condition or even a concern; let alone an operational concern.

CM – “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”.

Operational specialist ‘opinion’, much like that of the Rev Forsyth and specialist medical advice and that of the RRAT committee and the AOPA is being dismissed on an industrial scale; put aside as ‘opinion’ and disregarded. The end result is always that no matter how loud, how long; or, even how well informed or supported that ‘opinion’ may be; it will be arbitrarily dismissed. That demonstrable fact; stand alone should provide solid grounds for meaningful reform; alas, it does not. What it does provide is more and more money being demanded to prop up, protect and support a deeply flawed, failed, system. Until CASA itself acknowledges that the entire system is buggered beyond salvation; then nothing will be allowed to change.  

CM - "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".

The eloquent, intelligent, well supported argument presented by the inestimable McKenzie may well carry the day for him; however, it is a racing certainty that there will not be any internal inquiry leading to any meaningful reform of the way Avmed do business. That is the CASA way and until fundamental reform, across the board, is mandated by the parliament and driven home by a reform director; meaningful change remains as remote as finding intelligent life forms at the bottom of a slurry pit.

Selah.

[Peetwo]

Long gone are the days when Avmed relied on the opinions of treating specialists. - Part II

There is probably no better case study available to demonstrate the dire need for a reform of not only the ‘Avmed’ system; but also the reform of the Regulatory system in it’s entirety. The almost unbelievable antics of those involved in the Avmed system provide a clear picture of a failed philosophy, stumbling along it’s merry pathway to self destruction. Reflecting the legal and operational lunacy the current system imposes. The CASA is so deeply mired in the game of avoiding any and all challenges to their ‘above the law’ status that the common sense approach and practical application of ‘safety’ rules have become little more than a self incriminating, iron clad platform from which a successful conviction may be achieved.

Clinton has taken a very sensible stand; happily, he is able to match legal wits with CASA legal and, by making the case public, has avoided the certain fate of those who have won the battle, but lost the war. One of the most heinous results of challenging CASA is the ongoing persecution of those who managed to escape the first skirmish unscathed, only the be marked for later attention. This, standing alone makes for unsafe practices to be masked behind ‘box ticking’ and a reluctance to step up or speak out. For example, a reluctance to mention even any medical condition or even a concern; let alone an operational concern.

CM – “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”.

Operational specialist ‘opinion’, much like that of the Rev Forsyth and specialist medical advice and that of the RRAT committee and the AOPA is being dismissed on an industrial scale; put aside as ‘opinion’ and disregarded. The end result is always that no matter how loud, how long; or, even how well informed or supported that ‘opinion’ may be; it will be arbitrarily dismissed. That demonstrable fact; stand alone should provide solid grounds for meaningful reform; alas, it does not. What it does provide is more and more money being demanded to prop up, protect and support a deeply flawed, failed, system. Until CASA itself acknowledges that the entire system is buggered beyond salvation; then nothing will be allowed to change.  

CM - "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".

The eloquent, intelligent, well supported argument presented by the inestimable McKenzie may well carry the day for him; however, it is a racing certainty that there will not be any internal inquiry leading to any meaningful reform of the way Avmed do business. That is the CASA way and until fundamental reform, across the board, is mandated by the parliament and driven home by a reform director; meaningful change remains as remote as finding intelligent life forms at the bottom of a slurry pit.

Selah.

AAT Member Mark Hyman's record of decision to refuse CM's application for a stay on the suspension of his class two medical: http://www.austlii.edu.au/cgi-bin/viewdo...uery=Civil Aviation Safety Authority;mask_path=au/cases/cth/AATA

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.
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 thata.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.
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 established[1] 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.

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).
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.

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.
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.
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.

I have no doubt that Clinton McKenzie has the financial means and indeed the legal intellect to go head to toe with the almost unlimited resources of the CASA legal services division. However after witnessing the despicable, self-serving performance of the CASA executive management front row at the 'Oversight of CASA' Senate Inquiry yesterday, one wonders whether the draconian, financially burdened Avmed approach to re-certifying mostly PPL class 2 medical holders, is all part of the CASA Iron Ring masterplan to kill off the traditional RPL/PPL pilot fraternity?   


MTF...P2 

[Peetwo]

McKenzie vs CASA Avmed update.

From CM, via the UP:

Quote:

Is their '12 months' based on some precedent or standard, however derived, or is it an arbitrary number that could be subject to some further judicial review of administrative action?

The refusal, outright, to do any assessment during the 12 month period is, in my view, a manifestation of a couple of errors of law in the delegate’s decision that are easily demonstrated. However, for reasons I’ll explain, there’s little practical point in applying to the Federal Court for orders to the effect that the delegate should comply with the law.

Unsurprisingly - except perhaps for Avmed - delegates are supposed to exercise their powers on the basis of the specific circumstances relevant to the particular case in question. The potential risks of a medical condition posed to and by a day VFR pilot are not the same as the the potential risks of the same medical condition posed to and by an IFR-rated aerobatic-rated pilot who does single pilot IFR as a day job. (Note: the phrase “to and by” the pilot is important.). Further, delegates are not supposed to be dictated to by policy or administrative rule. 

Accordingly, one of the numerous circumstances that the ADJR Act says is an improper exercise of power is:

Quote:

[A]n exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

It’s obvious to me that Avmed has a policy simply to refuse to assess and make any decision on any evidence during the 12 months following the procedure I underwent. (Avmed has ‘form’ on making decisions under the dictation of policy. At one level this is not surprising, because Avmed does not have specialist expertise in the subject matter. )

The refusal is also, in my view, contrary to CASR 67.240(4), which says:

Quote:

(4)If:


(a) CASA suspends a medical certificate; and

(b) the holder of the certificate submits to an examination or test directed by CASA, or authorises the disclosure of information to CASA; and

© the examination, test or information shows that:

(i) the holder meets the relevant medical standard; and

(ii) the continued holding of the certificate by the holder will not adversely affect the safety of air navigation;

CASA must:

(d) end the suspension; and

(e) tell the holder in writing that the suspension has ended.

If the delegate’s letter is taken at face value, the outcome is that the delegate is simply going to refuse to change his mind during the 12 month period. I can only continue to assume the delegate meant what he said, because he steadfastly refuses to provide written confirmation that he will make assessments of evidence I submit and potentially form a different view during the 12 month period. 

Why wouldn’t I go to the Federal Court and get this stuff tested, when my ‘day job’ is administrative law litigation and I’m am able to afford it? Because there is no practical point. If I’m correct, all that will happen is that CASA will be directed to assess during the 12 month period. I already know what CASA’s assessment will be - there is little-to-no chance that Avmed could approach the assessment in an objective, unbiased way.

Where does the 1 year come from? I’m guessing it’s from the graph in the Ambekar study that’s selectively quoted in the selected ‘Relevant Medical Literature’ annexed to the delegate’s statement to the AAT. 

Let’s assume the material gathered by the delegate is a complete compendium of relevant studies. (A patently invalid assumption.). Let us also assume that no findings of any study have ever been subsequently proved wrong or inaccurate. (Another patently invalid assumption. My favourite study is “Why Most Published Research Findings Are False” by John P. A. Ioannidis.)

Even given those assumptions, Avmed mixes up the different probabilities described in the Ambekar study. There are the probabilities of when a recurrence of a previously treated fistula will occur - usually during the year following the treatment. But those are not the probabilities of it occurring. 

As I’ve said earlier, if Avmed walked the talk, it would be assessing the probabilities of recurrence. It would also be assessing the probabilities of the recurrence causing sudden incapacitation. If Avmed understood how the relevant probabilities work, it would know that the first times the second equals a very remote probability. 

In my case, I’ve already had a high quality dynamic CT scan over 2 months post the treatment, which is already past the 80% point on the Ambekar graph, confirming the ongoing effectiveness of the treatment. But given Avmed’s current position, Avmed would view the images from that scan like a dog watching television.

MTF...P2 

[Peetwo]

McKenzie vs CASA Avmed - latest update 6/12/18.

CM, via the UP:

25/11/18: I think you’ll find that Avmed now presumptively ignores the opinions of even the specialists who treat “former CASA OLC goons”. (That is unless the opinions are against the interests of the goon, in which case they’re considered by CASA to be an objective truth. CASA is at least consistent in what I consider to be a biased approach.)


Meanwhile, I underwent intravenous digital subtraction angiography on Friday. The results stated in the report: “entirely normal”.

So the timeline and specialists’ opinions are: 

- treatment in August, expressed to be a success

- I’m OK to fly day VFR, stated in a letter in October

- results of dynamic CTA scan on 6 November don’t indicate anything wrong

- results of intravenous digital subtraction angiography on 30 November are “entirely normal”.

In case anyone overlooked a key point in my previous posts: My surgeon is a pilot.

Against these opinions is CASA’s non-specialist opinion based on selected (acknowledged as such by CASA) and in my view misconstrued studies. 

I held a medical certificate and continued flying while I was unaware of the existence and potential consequences of a condition. The condition was then identified and treated, and the specialists who carried out the procedure say the treatment was successful, everything is “entirely normal” and I’m fit to fly day VFR. Only in the weird and whacky world of Avmed could it make sense that I should not now have a medical certificate enabling me to fly day VFR. Sure: Avmed will be able to come up with studies to show that there’s ‘some’ risk of sudden incapacitation. But I can come up with studies that show everyone’s ‘some’ risk of sudden incapacitation, just as everyone’s at ‘some’ risk of being struck by a meteorite. 

And apparently it’s OK for me to drive a petrol tanker past airports and schools, in all weather conditions day and night. 

I did laugh like a drain as I watched CASA on 19 November try to justify a regulatory regime in which self-certified pilots are allowed to mix it with RPT jets in G airspace but, by implication, I’m too dangerous to do so as well. I recall helping one of those pilots at a fuel bowser at a place that will remain nameless - Even with glasses he couldn’t read the instructions and keypad on the bowser. 

Fortunately one of the most significantly causal contributors to aviation safety in Australia is the low density of traffic.

My primary concern in all of this is that Avmed is now, in my view, a force inimical to aviation safety. 

It wasn’t so bad when all they were doing was destroying careers and life’s passions - that’s just money and personal satisfaction. At least that outcome does not have a negative impact on safety, in the sense that there would be no negative impact on safety if all Caucasian males were prohibited from flying. And it wasn’t so bad when there was a substantial increase in the number of medical conditions undisclosed to DAMEs and CASA, but dealt with ‘underground’. At least the conditions were dealt with.

However, it’s now got to the point at which some pilots are simply too scared to tell any doctor anything ‘when in doubt’, for fear of what would happen if Avmed became aware of a potential medical issue. Think of the dilemma faced by a pilot who’s considering talking to a doctor about a potential mental health issue, when the potential outcome is being ‘grounded’ or directed to undergo intrusive and expensive examinations while being presumed a potential GermanWings criminal. 

There is now a material possibility that someone ‘up front’ of an aircraft is too scared to talk to a doctor about a potential medical issue, for fear of Avmed. That is not good for aviation safety. 

CASA waves this away on the basis of the frequency of DAME examinations and the multi-crew environment. As always, any potential downsides of CASA Avmed’s behaviour are ‘spun’ as being justified, and inconvenient truths like single pilot IFR downplayed. 

Avmed chooses - note it’s a choice - to give greater weight to any evidence of potential medical unfitness compared with any evidence to the contrary. That’s not, in my view, treating the safety of air navigation as the most important consideration. That is, in my view, bias. That’s not, in my view, objective evidence-based and objective risk-based decision-making. That is, in my view, intellectually dishonest.

---

5/12/18: A conference occurred in the AAT on Friday 3 December. There is to be a conciliation conference on 1 April 2019. The date may be propitious
…



About the only substantive material of interest to readers is that I obtained access to the letter sent by the CASA decision-maker seeking supposedly independent specialist advice. The content of the letter confirms for me that CASA has either forgotten or has decided simply to ignore what the AAT said in the Bolton matter. My guess is that Avmed simply chooses to ignore what the AAT said. Not for Avmed the mere bagatelle of doing things in an objective, disinterested way.



Before setting out extracts of the letter from Avmed supposedly seeking independent specialist advice, it’s worth reviewing what the AAT said in the Bolton matter, and why. The decision (here:https://www.austlii.edu.au/cgi-bin/v.../2013/941.html ) says, at paragraph 24:


Quote:

Despite the fact that the statement [of erstwhile PMO Dr Navathe] does contain the declaration of duty required by the Guidelines [for Persons Giving Expert and Opinion Evidence] it could not be plainer that Dr Navathe is an advocate for his own decision. I do not propose to have any regard to his opinions. For the future I would trust that CASA’s Legal Branch would exercise independent judgement in deciding what witnesses ought be relied upon and the content of their statements. They ought, obviously enough, be confined to matters that are relevant and witnesses ought be those who can truly provide an independent opinion.

It didn’t end there. The AAT went on to say, at 25:


Quote:

It is not known what documentary material was provided to [the specialist] nor is it known what was conveyed to him by Dr Navathe in the conversation on 1 November 2013. Moreover, it is highly irregular that one expert witness, who is as well the primary decision-maker, was apparently briefing another expert witness in terms not disclosed. The danger of such a practice ought to have been evident. The vice is merely compounded by the failure to make clear what information was conveyed.

I find it breathtaking that the fundamental concepts underlying the AAT’s reprimands were either not obvious to Avmed and its legal advisors or simply disregarded by them in conducting the Bolton matter. At this point I tend and want to believe it was just the arrogance of Avmed in the face of legal advice to the contrary.



The underlying reason for those reprimands from Deputy President Hack SC of the AAT is that people who provide expert evidence are supposed to be independent of and disinterested in the subject matter of the decision under review. Experts are supposed to be provided with objective facts on the basis of which the experts express an objective and unbiased opinion. Dr Navathe was evidently an advocate for his own decision. Thus he was evidently not independent and the AAT therefore did not have any regard for his opinions. Further, Dr Navathe took it upon himself to engage in the “highly irregular” practice of briefing the expert in terms undisclosed.



So fast forward to my matter. As I’ve previously posted, the decision maker in my matter is Dr Sharma. Dr Sharma provided a statement to the AAT in advance of the stay hearing. That statement includes the declaration of duty required by the Guidelines. And see if you can guess if Dr Sharma’s statement was advocating for or against his own decision.



Dr Sharma wrote to a specialist on 31 October 2018, seeking a medical opinion. I have extracted key parts of the letter below (and continue to be prepared to make entire copies available to anyone on request if someone wants to post them in this thread). I will leave others to assess whether this constitutes a disinterested request for an independent expert’s opinion based on the provision of facts to the expert:


Quote:

OPINION SOUGHT


CASA holds ongoing certification concerns in view of the endovascular intervention for Mr McKenzie’s medical condition, the specified risks and probabilities outlined by Dr Mews and in the absence of evidence of stability of the ONYX procedure. [My notes: I again note Dr Mews’ opinions of the risks and probabilities are implicitly taken as evidence, but his opinion (and that of Dr Lalloo) as to the success of the procedure is implicitly dismissed as no evidence. Further, there is no causal connection with CASA’s concerns and my compliance or otherwise with the class 2 medical standard. CASA’s concerns are irrelevant to – or at least should be irrelevant to – the expert.] 

Considering that Mr McKenzie is now only some 2 months post procedure it is also of concern as to the potential procedure-related risks viz. permanent neurologic morbidity or failure of the procedure requiring re-treatment, and the likely risks due to the medical condition itself (haemorrhage, venous congestion/intracranial hypertension, ischaemic neurological deficit or seizure). [My notes: Again, there is no causal connection with CASA’s concerns and my compliance or otherwise with the class 2 medical standard. CASA’s concerns are irrelevant. The word “only” is value-laden, as is the phrase “likely risks”. These are matters about which the expert is supposed to form an independent view.]

Mr McKenzie’s present proceedings before the Tribunal seek to review the suspension decision and potentially the need to provide further evidence as to his medical condition. [My notes: The assertion that I have a “medical condition” is merely that. It’s supposed to be up to the expert to express an independent view as to whether diagnosis X on Y date followed by procedure A on B date results in any ongoing issue months later.] He contends that the suspension is unreasonable since he has been medically fit during the 32 years of flying before the diagnosis of a pre-existing medical condition and that the recent “successful” medical procedure has reduced whatever risks arose from the DVAF. [My notes: My contentions are irrelevant to the specialist, or at least they should be. In any event, it was Drs Mews and Lalloo who expressed the opinion that the procedure was “successful”, that I am not a risk of incapacitation and that I meet the class 2 standard for day VFR.]

CASA considers such a submission to be untenable in that the issue is whether or not Mr McKenzie presently meets the Class 2 medical standard in all respects. [My notes: At least CASA got one thing right: there is only one issue. But the point is that all the other fluff is unnecessary and irrelevant to the specialist, or at least it should be.] Provided at Annex 2 are [sic] a list of identified studies of potential relevance to the matters under consideration. [My notes: More on the list later, but here you see one of the clearest manifestations of Avmed’s complete arrogance or complete misunderstanding of how independent experts are supposed to be briefed. They are not supposed to be spoon fed the decision-maker’s inexpert and selectively chosen and quoted studies that just happen to support the decision-maker’s own decision. I am completely astonished that CASA continues to do this, in the wake of the Bolton decision.]

CASA seeks your opinion (including supporting references) with respect to the following: … [There follows a list of mostly leading questions. My favourite is this one: “Do you agree with Dr Mews[sic] initial assessment of a 40% annualised malignant behaviour risk prior to treatment.” That’s not, in fact, what Dr Mews said. It’s Avmed spin.]

The ‘list’ is headed “Evidence elsewhere”.



The most breathtakingly inappropriate aspect of the list is not that it’s there at all (an independent expert is supposed already to have access to reference material relevant to their expertise, based on their own judgment, otherwise they aren’t experts); it’s not so much that the list is selective; and it’s not even so much that it is mostly selective in favour of material in support of the decision-maker’s decision, when the decision-maker is briefing the ‘independent’ expert. I get it now that Avmed just blithely operates in a way that is in my view biased and intellectually-dishonest.



The most breathtakingly inappropriate aspect of the selective and selectively quoted material is that there is emphasis added by Avmed! That is, Avmed has gone through and underlined and italicised text that is not underlined or italicised in the original source documents. Presumably this is so the “independent” expert can “independently” come to the view that the underlined and italicised text in the material selectively chosen and quoted by the non-expert decision-maker who happens to be briefing the “independent” expert is – surprise, surprise – specifically relevant to and – surprise, surprise – supportive of the decision-maker’s decision.



My favourite selectively quoted text with underlining and italics in Dr Sharma’s letter to the expert that is not underlined or italicised in the original text of the source document is this:


Quote:

Even lesions apparently cured with embolic agents have been shown to recanalize, including potentially catastrophic bleeding. Hence, even apparently obliterated lesions with transarterial embolization should be followed with late confirmatory angiogram, after a few months, to confirm effective cure.

You got that, “independent” expert? The non-independent non-specialist decision-maker wants you to independently form the view that the text selectively quoted and emphasised is specifically relevant to your “independent” opinion.


Why is that my favourite? I have now undergone a “late confirmatory angiogram, after a few months, to confirm effective cure”. The intravenous digital subtraction angiogram I underwent on 30 November confirmed effective cure of the procedure I underwent on 23 August. By my maths, that’s a few months. I’m advised that intravenous digital subtraction angiogram is the ‘gold standard’ scan to confirm ongoing success in cases like mine. However, I have no confidence that Avmed will consider the results of that scan (or the results of the dynamic CTA scan from 6 November) in an objective way, even assuming Avmed had expertise to do so.

MTF...P2 

[Cap'n Wannabe]

A rather long and detailed reply to CM by Nowluke:

Leaving aside the details of your concerns with the application of administrative process and the roles of a regulator/accrediting body. I have no skin in the game or knowledge on that front, I have no CASA connection and empathise with your frustrations. It looks like you've not had a pleasant experience.

Nevertheless, you had a flight safety relevant condition which was treated using novel (i.e. new techniques) for which a significant body of long term evidence has not been generated. Your specialist opinions did not address the specific questions required in order to make a sound risk based decision. You then further complicated the process by acting as your own medical advocate with the avmed unit. Where was your DAME or GP in this process? Further complicating this you sought out 'tests' to provide secondary proof against a negative, which can't really logically ever be done i.e. "prove it won't happen"

There's an element of fixation around 12 months being 'required' to make a decision. Without diving into a large amount of academic papers, generally, any instrumentation of your brain, its vascular sctructures and the cavity it sits in has a significant risk of generating a (new) source of future seizures (i.e. risk) and causing damage/infection/bleeding. This risk is generally realised within the first 12 months if it is to occur and the corollary is that if its occurrence rate is less than once/year then it should generally be acceptable under most aviation contexts (or have mitigations applied to make it so).

There is no evidence that can be provided in the intervening time period as there is no clinical/investigatory test able to stratify the cohort- there is generally only evidence/results of higher risk i.e. a bleed/neurological symptoms/infection etc. or immediate short term 'treatment' success. That you have normal post intervention tests is reassuring you are not at a higher risk than baseline however the condition has risks of recurrence/treatment failure/complication that no test other than the passage of time exists to prove non-occurrence. A 12 month period is somewhat arbitrary but it is the objective statistical risk standard/threshold for decision making and there is some evidence for that period roughly correlating with a period of recovery healing/rehab and then physiological stabilisation (more towards the 6-12month time period). Much argument can be had over the 1% rule and its origins/assumptions but it is what is used and sets part of the standard.

The phrasing/process in the corro out of CASA, from your position, would not be compliant with admin process law or some similar position. It doesn't strike me as particularly troublesome in providing an independent opinion. Very specific hypothesis/questions/risk scenarios/assumptions need to be addressed with rigour. Provision of a supporting or dissenting opinion (with academic clinical research/analysis to support) against these is critical in coming to a reasonable decision against a risk framework (Meta-analysis, single quality study, other cohort research and then expert opinion form the hierarchy with most weighting to the former). The absence of an opinion (against not just "fit to fly today" but time based risk and long term consequences with quality research to back it up), as would appear to have occurred with your earlier reports has led to the ambiguity/lack of probabilistic statements against the risks. I would be very surprised if any reasonable person would then afford you the 'benefit of the doubt' rather than take the conservative position.

I'd likely consider you recommendable to be fit to fly Class 2 with restrictions after 12 months from your narrative but can't offer an opinion on an incomplete picture. The other question I would ask is that why not fly under an RPL or Basic Class 2 - if you VFR day fly only for your own pleasure? The emotional effort and time to 'fight' for a principle or against perceived slights is not going to be healthy for you in the long term.

And CM's response..

Nevertheless, you had a flight safety relevant condition which was treated using novel (i.e. new techniques) for which a significant body of long term evidence has not been generated.

Thanks for your opinion. I am not aware of what expertise and experience you have.

That said, I agree, based on the advice of specialists whose opinions I respect, that I did have a safety relevant condition. But note: I left out “flight”, because part of the problem with the Avmed paradigm is its self-interested insistence that aviation is ‘special’ with unique risks.

In fact, apart from the activities engaged in by fighter pilots and aerobatic pilots, there’s very little in aviation that entails some special demands on pilots, resulting in an objective justification for a special medical standard (even though pilots, wearing their own-worst-enemy hats, like to think otherwise).

Specialists with relevant, current experience disagree with your opinion that the treatment continues to be “novel” as you have defined it.

It’s an acceptable risk for me to continue to drive a car that weighs more than my aircraft and carries more people than my aircraft, on the road shared by buses full of school children a mere couple of metres away, day and night in all weather, when I’m apparently an ongoing potential neuro-circulatory time bomb. Were I to instead get into a vehicle of less weight with fewer passengers, usually kilometres from the nearest other people, apparently the risk of sudden incapacitation increases or the consequences become more catastrophic if there happens to be an air gap between the vehicle and the ground. That seems to me to be a nonsensical incongruity. However, I know why it exists - more on this later.

Your specialist opinions did not address the specific questions required in order to make a sound risk based decision.

Let me fix that for you: Apparently the specialist opinions do not address the specific questions that, in Avmed’s opinion, are required in order for Avmed to make what is, in Avmed’s opinion, a sound risk based decision by Avmed.

Were it the case that:

1. any of the medical professionals with whom I’m dealing were prepared to speak in glowing terms of Avmed’s expertise and decisions, and

2. I could find any correspondence or statement in this matter that is not replete with what I consider to be biased and intellectually dishonest spin by CASA, and

3. my specialists were unwilling to express any opinion as to my current fitness to fly,

then I might take Avmed’s opinions seriously and allocate weight to them compared with specialists with first hand knowledge of my circumstances.

What I find baffling is that when my specialists express the opinion that the procedure was a success, that I am not a risk of incapacitation and meet the standard for day VFR, it seems Avmed (and you) think those opinions were expressed just for shits and giggles, or perhaps based on disembowelling a goat and reading the entrails or by consulting an astrologer.

The objective fact is that there is no causal connection between Avmed’s opinions and levels of knowledge or ignorance on the one had and my compliance or otherwise with the medical standard on the other. Or do I have that wrong?

You then further complicated the process by acting as your own medical advocate with the avmed unit. Where was your DAME or GP in this process? Further complicating this you sought out 'tests' to provide secondary proof against a negative, which can't really logically ever be done i.e. "prove it won't happen"

Bit hard to know where to start with that...

I haven’t “sought” any tests. I hate doctors (not on a personal basis), I hate hospitals (but love their work), I hate needles and I hate holes being punched in my groin so that tubes and contrast chemicals can be fed through my circulatory system.

I’ve undergone the kinds of scans that my specialists recommended I undertake, at the points in time my specialists recommended that I undertake them, in what they say is the ordinary course of follow-up tests in cases like mine. (And let me make this very clear: If it were otherwise, I would be taking action if my specialists have been ‘ordering’ scans in circumstances in which they would not ordinarily recommend them. However, I’m very confident that my specialists know what they’re doing, in my particular circumstances.)

I have no idea what you mean by “acting as [my] own medical advocate with the avmed unit”. I asked my GP and specialist to forward to Avmed whatever stuff that may be relevant to my case. My first post-procedure correspondence with Avmed was me forwarding to Avmed my GP’s letter to Avmed that I requested my GP to send Avmed, just to make sure Avmed had received it and I couldn’t be accused of withholding information from Avmed. My GP didn’t generate that letter as a consequence of sensing a disturbance in ‘the force’.

I visited my GP after the procedure. I had a follow-up visit with the specialist a few weeks after the procedure. Are you or Avmed worried that my GP and specialist failed to notice that half my face was paralysed, drool was running down my chin and I was in a wheelchair being led by a guide dog?

As to a DAME, what possible ‘value add’ could a DAME’s opinion currently be? Are you seriously suggesting that, having disregarded the specialists’ opinions, Avmed is going to do anything other than disregard the opinions of the non-specialist GP and DAME? (This was one of the fascinating things that CASA brought up at the stay hearing.)

I have repeatedly requested that the delegate confirm, in writing, that the results of scans carried out during the 12 month period post-procedure will be assessed by and potentially change the delegate’s position during the 12 month period. That request has repeatedly been denied. There’s been some sophistry in correspondence from a CASA lawyer, but the lawyer isn’t the delegate and the lawyer’s opinion does not determine the delegate’s position. For CASA to keep raising the issue of GPs and DAMEs in those circumstances is, in my view, simply disingenuous. CASA will ignore their opinions (unless, of course, they are against my interests) and GPs and DAMEs will defer to the opinions of treating specialists in any event.

There's an element of fixation around 12 months being 'required' to make a decision. Without diving into a large amount of academic papers, generally, any instrumentation of your brain, its vascular sctructures and the cavity it sits in has a significant risk of generating a (new) source of future seizures (i.e. risk) and causing damage/infection/bleeding. This risk is generally realised within the first 12 months if it is to occur and the corollary is that if its occurrence rate is less than once/year then it should generally be acceptable under most aviation contexts (or have mitigations applied to make it so).

In your opinion.

And what, in your opinion, is the percentage risk of a recurrence of or new vascular abnormality, multiplied by the the percentage risk of that causing sudden incapacitation? Or is this one of the circumstances in which it’s just OK to use words like “significant” or “high”, rather than specific numbers like 1% or 2% that apparently have some magical consequence. The insistence on specificity is selective. That selective insistence is, in my view, biased and intellectually dishonest.

There is no evidence that can be provided in the intervening time period as there is no clinical/investigatory test able to stratify the cohort- there is generally only evidence/results of higher risk i.e. a bleed/neurological symptoms/infection etc. or immediate short term 'treatment' success. That you have normal post intervention tests is reassuring you are not at a higher risk than baseline however the condition has risks of recurrence/treatment failure/complication that no test other than the passage of time exists to prove non-occurrence. A 12 month period is somewhat arbitrary but it is the objective statistical risk standard/threshold for decision making and there is some evidence for that period roughly correlating with a period of recovery healing/rehab and then physiological stabilisation (more towards the 6-12month time period). Much argument can be had over the 1% rule and its origins/assumptions but it is what is used and sets part of the standard.

Interesting opinions.

“There is no evidence that can be provided in the intervening period as there is no clinical/investigatory test able to stratify the cohort”. Really? There are eminent specialists in medicine and statistics who have different opinions. Or is yours an objective truth?

“Somewhat arbitrary”. Is that like being “a little bit pregnant” or “slightly heavy-handed”?

The “1% rule” is not a rule. That’s why much argument can and should be had about it. I realise that it’s a number that’s nice and simple and, therefore, compellingly attractive and easy to use to convince the AAT and others of its safety relevance. But the objective fact is that it isn’t a “rule” and there is no safety magic in it.

The phrasing/process in the corro out of CASA, from your position, would not be compliant with admin process law or some similar position.

I have no idea what you meant by that.

It doesn't strike me as particularly troublesome in providing an independent opinion. Very specific hypothesis/questions/risk scenarios/assumptions need to be addressed with rigour. Provision of a supporting or dissenting opinion (with academic clinical research/analysis to support) against these is critical in coming to a reasonable decision against a risk framework (Meta-analysis, single quality study, other cohort research and then expert opinion form the hierarchy with most weighting to the former). The absence of an opinion (against not just "fit to fly today" but time based risk and long term consequences with quality research to back it up), as would appear to have occurred with your earlier reports has led to the ambiguity/lack of probabilistic statements against the risks. I would be very surprised if any reasonable person would then afford you the 'benefit of the doubt' rather than take the conservative position.

And there we have it, writ large: Not an objective assessment of the risks and consequences, but bias towards the worst-case scenario, based on an appeal to the “reasonable person”.

And we know what Ace CASA always has up its sleeve: the cognitive bias of the “reasonable person” contemplating an aviation catastrophe. You should read all the relevant studies on cognitive bias. Scaring the public pays the bills.

I'd likely consider you recommendable to be fit to fly Class 2 with restrictions after 12 months from your narrative but can't offer an opinion on an incomplete picture.

Not to worry: I have specialists who’ve already expressed an opinion.

The other question I would ask is that why not fly under an RPL or Basic Class 2 - if you VFR day fly only for your own pleasure?

Not that it’s any of your business, but the answer is: I don’t want to. I’m pretty sure I still have choices in these matters.

The emotional effort and time to 'fight' for a principle or against perceived slights is not going to be healthy for you in the long term.

And here we see another ghastly irony of the Avmed system, writ large.

Avmed made an administrative decision that affects my interests. I am entitled to seek review of that administrative decision, and have done so. That’s how it’s supposed to work in a representative democracy supposedly subject to the rule of law. Your dismissal of my concerns as “perceived slights” suggests to me that you might not understand how government accountability mechanisms are supposed to work, and why, (but also, coincidentally, confirms for me that you are in the medical industry).

The practical consequence of the way in which Avmed chooses to administer the medical certification system is that people can simply be ground into submission through not having the resources to fight or - and this is the ghastly irony - through the stress that is ultimately deleterious their health. What a great outcome! Caused by people who claim to be medical professionals.

Let’s see if I can summarise: We should all just cop whatever decisions Avmed makes, because to do otherwise will be bad for our health. (What’s the name of that organisation which says non-compliance with its demands could be bad for your health? The name escapes me for the moment...)

The “principle” that I am actually fighting for is aviation safety.

There are very simple ways for holders of class 1 and class 2 medical certificates to avoid all of what I’ve gone through as well as keep their medical certificates. Very simple ways.

The way in which Avmed currently chooses to administer the aviation medical certification regime encourages pilots to choose those ways. Pilots are increasingly choosing those ways.

That is bad for aviation safety because it’s bad for the health of those pilots.

That is why Avmed is now, in my view, a force inimical to aviation safety.

Think about that and your opinions, the next time you jump on a commercial aircraft. And remember: you’ll be sharing the sky with self-certified pilots.

[Peetwo]

McKenzie vs CASA Avmed - latest update 19/12/18.

Off the UP with the ongoing saga of CM vs CASA Avmed; Fight Engineer gets my vote for most common sense response(s) to now resident Avmed CASA sexual Nowluke...

Fight_Engineer

There's one small problem for those excusing CASA's appeal to "prudent caution": one of CASA's own published Aviation Medicine case studies.

It's the one describing "Jim's" stroke at age 76, which finally grounds him (just in case this, my first PPRuNe post, does not permit URLs, and any of you need to search).

In this case study, CASA describes grounding a pilot who has a stroke, at the age of 76. This means, by CASA's own documentation, CASA continued to renew Jim's Class 1 medical certificate (with conditions) when Jim was aged 75, and diagnosed with Type 2 diabetes, and known to have high cholesterol and high blood pressure. 

Here are some "medical" stats:
1. The absolute annual risk of one quite severe medical condition (mild death, with recurring symptoms) for the average75 year old Australian male is about 4%. Just go to the ABS and take a look at the life tables to confirm. 5% annual chance of death is reached at about age 77 for the average Australian male.
2. Life expectancy for people with Type 2 diabetes is substantially reduced, possibly up to 10 years. If I need to find credible data, I will, but I am sure the forum medical experts will have such data on-hand and should be happy to quote.
3. Thus, the absolute annual risk of death for 75 year old "Jim" with diabetes, plus CASA-documented high cholesterol, plus CASA-documented high blood pressure is "significant" / "non-trivial". You don't need advanced maths/stats to know that it's "significantly higher" than the 4% annual risk for the average 75 year old male. As a guide, IFF the life expectancy for a Type 2 diabetic Australian male is, say 75, then Jim had a 50% total chance of already being dead at the age CASA renewed his Class 1 medical certificate. Despite my limited medical expertise, I am confident that death is regarded as an incapacitating condition with substantial negative consequences, even among lay-people. And that's before we consider what other non-death incapacitations diabetic old "Jim" might also be at a higher risk of suffering (it's debatable whether we should lump in the full risk of Jim's actual factual stroke with the general elevated risk factors already identified for Jim - it's a veritable smorgasbord of possibilities for his age and documented conditions).

I have read the Ambekar and Adamczyk studies, and it is not credible to contend that CASA's approach between Clinton's case and Jim's case is objectively consistent from a statistical safety-driven standpoint. The only way to get close (from a statistical risk viewpoint) is to assume that the consequences of (just a) recurrence of a DAVF after having been "nominally cured" (ie. Clinton's current state) is worse than the consequences of actual death. I don't need to be a specialist in anything, or beat my chest about experience/qualifications to state authoritatively that the incapacitation consequences of DAVF recurrence cannot be worse than the incapacitation consequences of death.

So, for those of you who think CASA's approach in these two cases is "consistent", please explain what stats, studies and numbers you are using to justify your "trumps". For me, it's just about the numbers - and using population-level stats, plus CASA's own published information and cited studies, their approach to pilot incapacitation risk/safety cannot be described as consistent in these two cases.

It's also obvious that if the default approach is: " we're not sure, so we'll ground if in doubt and defend initial decisions no matter what", then pilots have a strong vested interest in never revealing anything voluntarily to their regular GP or "DAME". That's objectively a sub-standard outcome.

And a CASA medical officer who effectively instructs an "independent expert" doesn't seem confident that his own conclusions will be confirmed. This behaviour is indefensible [in a decision review scenario].

And Nowluke's response:

For Flight_Engineer - your assumptions and conclusions are incorrect. Whilst death is an outcome for everyone and its all cause rate after a certain age approaches 100% (somewhere near 117). This does not then mean that the risk acceptance threshold changes or if your other condition risks are less than this then the system is flawed. As before, the risk decision is composed of the full view of the "rate of unacceptability at which the hazard is realised when an appreciation of the condition in the environment is made with respect to the standards acceptable within the safety management system. This rate is whatever is set by the regulator and it is the best that can be made with the scientific, not single expert, knowledge available". Yes death is a single event, yes it is pretty bad (for the individual and whoever is nearby in the aircraft) but whilst the individual effect is large, the statistical event risk is lower than a plethora of other safety significant events (or risks of events).


The hazard is not death (although that is an outcome), it is the condition or treatment causing impairment &/or incapacity &/or death &/or the aviation environment effects and/or mitigations on the condition over the term of the licence.

I would be surprised to hear of anyone flying on a Class 1 CPL/ATPL internationally over 65 and domestically without investigations every 6 months and would also be surprised if companies employ them (in a passenger flying role) over 70 (and only domestic multi-crew) at all for broader insurability reasons (partly due to that all cause death rate you raise). Noted though there are some QFI/FIs flying students well into late 60's/early 70's, again with some pretty strict conditions. 

The proposal of "never tell anyone" about medical issues and describes an attitude of wilful violation of the broader safety system and a lack of integrity. The, "I know best" and "if you mention anything you'll be grounded" combination will undermine safety even when there isn't mistrust in the system- and there are no quick fixes when those under regulation actively undermine that system. It is also under-appreciated that the decisions that are made are in the broader public interest rather than the individual. 

It's nowhere near perfect and people will be upset, your response to actively mismanage one's own occupational healthcare puts others lives, property and reputation at risk in a repugnant and self-indulgent way that no one would reasonably support.

If you transcribed some of these conditions under discussion to the engineering space and started talking about 15%, 40% yearly failure rates or degradations of critical engine/flight surface parts then I'd say there would be some spirited discussion of continuing to use those parts...

Vis your magical Jim, no idea what the detail is. You could very easily sign off on anyone on a class 2 for VFR, daytime flying in remote contexts and then restrict the operating area - i.e. cattle surveying/remote property access work in a defined area and then add on multi crew restrictions or time limits, whatever mitigates the risk, in context, to an acceptable level. If the risk is indeterminate or there are multiple risks/risk factors then a conservative approach is always going to be the case. The other considerations though are much lowered if the only victim is yourself and your private property. Similar processes occur in the road transport context. The regulator is not going to do the legwork to demonstrate or research these mitigations without government direction.

To which Sunfish responded:

Nowluke, you are either a troll or wilfully ignorant about the subject of risk. There are rigorous processes for managing risk available right now ((even from ICAO) that you do not seem to have any understanding of, or, like the regulator, CASA, you do know but prefer your own brand of self serving necromancy to established fact,


Quote:

This rate is whatever is set by the regulator and it is the best that can be made with the scientific, not single expert, knowledge available".

There are current ICAO standards for the probability of death via aviation, there are also numerous actuarial metrics. From memory we are talking of the order of forty million to one. These are internationally accepted standards for risk. Neither CASA nor the AAT seems to make use of these datums which is a crime.

Quote:

The proposal of "never tell anyone" about medical issues and describes an attitude of wilful violation of the broader safety system and a lack of integrity. The, "I know best" and "if you mention anything you'll be grounded" combination will undermine safety even when there isn't mistrust in the system- and there are no quick fixes when those under regulation actively undermine that system. It is also under-appreciated that the decisions that are made are in the broader public interest rather than the individual.


It's nowhere near perfect and people will be upset, your response to actively mismanage one's own occupational healthcare puts others lives, property and reputation at risk in a repugnant and self-indulgent way that no one would reasonably support.

Sanctimonious codswallop. The alleged "broader safety system" lacks even a shred of integrity as evidenced by the regularly reported bizarre behaviour of CASA staff including Avmed and despite the numerous pleadings, reviews and negotiations attempted by industry. Given that the system is broken there is no safety case to undermine.

As for your appeal to "the public interest" you must be joking. To educate you, any test of what "the public interest' is actually involves two components; the cost to the community of an event (a medical incapacitation causing an accident) versus the cost to the community of mitigating the risk of said accident. IT IS THIS SECOND HALF OF THE EQUATION THAT IS NEVER CONSIDERED BY YOU AND CASA - AND THOSE COSTS ARE HORRENDOUS!!!!!

The result is a system of regulation that has destroyed thousands of jobs and billions in investment (let alone opportunity costs) without saving the community from any meaningful expense at all. So much for your notion of public interest. You have to take into account the cost to the community of regulation and this seems to have escaped both CASA and you. Again there are ICAO metrics and procedures available right now to do these calculations.

Other jurisdictions have considerably better and more relaxed regulatory environments. Their publics profit from it and their skies aren't raining aluminium either.

Inevitably Nowluke responded...

ICAO provides a medical framework which Australia/CASA aligns to in our environment, large portions will be wholly adopted or partially will be with localising changes and there will be exceptions. I am familiar with the medical standards and know there is a large amount of flexibility in their application and guess what, a nation can put any further restrictions or exemptions in place that it feels are necessary. These deviations are on the air services website. The loose wording of the standards, I would say, purposefully allows a large amount of latitude for medical issues. Further, for this case, ICAO is silent on these clinical particulars.


I don't agree with your goading tirade or the position that some enormous harm is being manifested. Your absolute position- that it's all f#%$ed, no planes are crashing and there's river of cash and jobs we're missing out on sounds like a politician's fever dream. Unfortunately there is a culture of grievance and refusal to accept a situation when it doesn't match an entitled opinion. If there is such a swathe of systemic issues then stand up a (new) senate committee or write to your MP and put them to light. Blowing hard on the internet's not likely to do much.

I agree the system has (not insurmountable) issues and in the medical space it can be extremely difficult to run a situation down to a statistical value. As I've repeatedly said, you're never going to have a regulatory organisation accept a critical/catastrophic risk scenario in the absence of quality data without a period of non-event to support it. End of.

+

...because there is quality data that those risks are improbable or negligible (post mitigations)...

+

vis Jim, it all appears pretty reasonable, he probably would have met the threshold in some guidelines for some more invasive cardiac screening (CCT/Angio) years before his stroke if you take him as a Class 1 who does single pilot air show work and some instructing. Retrospectively his condition may have been present for a number of years prior and wasn't/couldn't be detected. If all of the required/indicated investigations were negative and then guidelines stratified him into lower risk cohorts of diabetic, hypertensive elderly men he may not be (in the narrative he obviously isn't') above the level where his Class 1 is revoked. What's the exact issue? There is a conflict though at around that age, where as it was raised, it doesn't really matter how many negative tests you have, it's getting close to closing time percentage wise- this conflict I understand is based on age discrimination issues, you can't blanketly revoke licences on that basis and there aren't sensitive enough tests to demonstrate prospectively what pathology Jim has.


Post his event they made him fly privately with QFI only as a mitigation as out of 100 Jims much more than 1% will suffer an incident, not going to be a fun day for the QFI though as Jim's 10 through 38 keel over and not appropriate to have it occur in a commercial context i.e. multicrew as a mitigation (although it could be feasible in a younger, less comorbid individual as their culminative hazard would be less but that's a different story).

Boy this guy loves the code from his keyboard...
But then FE in true right of reply retort said...

Nowluke... I think your post at 13:11 is quite revealing. Firstly, I made no assumptions, except ones which are inarguably obvious. Obvious, like, I don't need to see a double blind peer-reviewed study with controls to know, say, that parachutes save lives.


Secondly - and not that it matters in the context of this discussion - I am not (and never have been) a pilot, and have very little to do with aviation other than as a regular passenger on typical commercial airlines. "My" response is an objective analysis of comparative data and CASA's decisions based on that data. Whatever assertion you make about "me" in regard to the effects CASA actions will have on whether actual pilots reveal medical information is (like some of your qualitative maths) way off the mark. If the regulator appears to punish honesty and (more importantly) obstinately defends/protects its own decisions from new information and independent review, then the end result will be increased dishonesty = reduced safety. Whether you or I like it is irrelevant - unless you are a person with responsibility in the field. If you are, I counsel against denial.

"My" magical "Jim" is described in CASA's own published case study. I cannot post links (yet), otherwise I would have saved you 5 secs of search.

I suggest you read its details very, very carefully and understand fully the facts it reveals, and then try again to credibly defend your carefully crafted claptrap - after recovering from your surprise. It's clear you did not read the Case Study, when you theorise about all those mitigating restrictions which were not placed on Jim's flying. Similarly, disingenuously quoting failure rates of 15% to 40% in engineered parts as if these are the numbers that equate to Clinton's incapacitation risk was the icing on the cake.

I will repeat for you, but I know your opinion is set (perhaps you should apply for a job at CASA - or better still, don't): despite the comparative stats and data/studies available, CASA's application of stats for safety risk assessment between Clinton's case and "Jim's" case is inconsistent.

To which old mate Nowluke could not help himself...

See above? or as copied Retrospectively his condition may have been present for a number of years prior and wasn't/couldn't be detected. If all of the required/indicated investigations were negative and then guidelines stratified him into lower risk cohorts of diabetic, hypertensive elderly men he may not be (in the narrative he obviously isn't') above the level where his Class 1 is revoked. 


That said, it's a narrative story with none of the references to the decision makers reasoning or guidelines/evidence applied to underpin the decision. His changing licence restrictions aren't annotated as he aged into the 60+ zone nor are the frequency and types of tests he most definitely would have needed prior to then to support the decision i.e. ATPL loss, CPL loss or restrictions etc. In the absence of these, and a point where you are correct, is that his baseline risk, without investigation would have likely precluded his renewal. 

It's a repetition of previous, "here's a "safe" apple!!!!!" "now apply it to my orange". "Here's a single related story, and I say CASA got it wrong!!!!" therefore "everything must be wrong!!!" 

The percentages were not linked to anything, just that they were in a range where it is not negligible and it's not above odds- I don't think Clinton in this case (and I'm not spending a couple of hours trawling through neuro/radiology journals) has a clearly evidenced prospective risk percentage (for or against a renewal), hence the waiting period/non consideration (as I understand it) for 12 months. I don't think the CASA decision reasoning has ever been fully placed on here, only Clinton's interpretation/recall of it and my perspective on what the reasoning possibly was.

Not to be out done FE come back with...

Quote:
Originally Posted by Nowluke 

vis Jim, it all appears pretty reasonable, he probably would have met the threshold in some guidelines for some more invasive cardiac screening (CCT/Angio) years before his stroke if you take him as a Class 1 who does single pilot air show work and some instructing. Retrospectively his condition may have been present for a number of years prior and wasn't/couldn't be detected. If all of the required/indicated investigations were negative and then guidelines stratified him into lower risk cohorts of diabetic, hypertensive elderly men he may not be (in the narrative he obviously isn't') above the level where his Class 1 is revoked. What's the exact issue? There is a conflict though at around that age, where as it was raised, it doesn't really matter how many negative tests you have, it's getting close to closing time percentage wise- this conflict I understand is based on age discrimination issues, you can't blanketly revoke licences on that basis and there aren't sensitive enough tests to demonstrate prospectively what pathology Jim has.

And yet, despite all that extensive, invasive screening, investigations, long history and stratification into lower risk cohorts (presumably by individual experts) among the large statistical population of Type 2 diabetics, Jim then went on to have a "surprise" stroke before the year was out. Perhaps if CASA had used this case study to then document and publish some revised, substantially more cautious approach to dealing with the patently obvious high risk Jim posed, then that might justify CASA's inconsistent statistical approach in these two cases. That's the exact issue. You, and CASA, have used the fewer (but still sufficient for statistical analysis) data points associated with "nominally cured" DAVFs as a blanket excuse to bend the incapacitation risk to a level the data/maths does not support.

 
Classic! And a chocfrog for Fight Engineer - 

[Kharon]

Through the gloom, doom and despair; a little ray of sunshine; and a Choc Frog.

Only a tiny one – but enough to shine on a possible solution to the ‘Industry v CASA’ head butting competitions.  Perhaps I’d best explain – as best I can, bear with me, it is a little complicated and not my tale to tell. Last evening was a ‘full-on ’Ill’s of Society (IOS) meeting; we were all waiting for P7 to roll up; which he did, only 30 minutes late. Beer in paw, tie off, jacket hung up – we all waited for the result of his day out. (We don’t let him out often). “Time” he said; “give me a half hour to collect my poor wits and have an Ale”.

He started off a little while later with one of the most shocking statements I; or, the other IOS have ever heard – “Choc Frog awarded to CASA Avmed.” Shocked silence…………He began thus:-

“I cannot go into the specifics, you are all aware of the hearing in the AAT today and you know I was essentially there to hold another fellah’s jacket and to assist – as and when required”. “So, I’ll bore you for just a little while – when I had my body restructure and zipper fitted, the risk and the cause were clearly, unequivocally and scientifically defined; cash and no bullshit”. “Happily, all was well, I did my six month penalty, collected the paperwork and, CASA re-issued my medical – no contest from them; cause, effect and prognosis clearly defined”. “In fact, I thank the ‘system’, for it saved my aging hide.

“When there is ‘doubt’ related to cause and a ‘considered’ reasonable amount of doubt about future ‘well being’ Avmed put the brakes on”. “When this happens – when the risk levels are marginal and the ‘patient’ feels fighting fit, a degree of friction is inevitable”. “This was the case today; essentially a protest against a rule of thumb and arbitrary ‘tick and flick’ process”.

“There can be little doubt that initially the CASA ruling was of this type – none.”

“There can be no doubt that CASA were prepared to stand behind the initial assessment”.

“However; as in my case, when the ‘facts’ are explained – properly, by an ‘expert’ in the field the CASA problems become clear”. “If we can, in this case, put aside the now nugatory  initial balls up, the need to go to the Tribunal stage, still rests squarely with the CASA image”. “It is almost a reflex to rail against CASA generated action – based on distrust, suspicion and a wide knowledge of previous acts of embuggerance”.

“Operationally, CASA are terrible – true”. “In terms of ‘strict liability’ and the almost total  lack of operational expertise calls out ‘challenge’; in fact the industry has lost any semblance of ‘faith’ in almost any operational ruling CASA make”. “And so, it’s off to the AAT; or surly silence; or, grudging compliance with ‘Yeah whatever’ tacked on: this is an incontestable fact of aeronautical life”.

So why the Choc Frog, howls the mob?

“Today I sat through a CASA argument – at it’s very, very best”. “Today I actually stood, listened and watched ‘my ideal’ Safety Authority working through a very difficult case”. “Their lawyer was, primarily, a gentleman worth knowing and I acknowledge the skilled, factual presentation”. The ‘CASA’ representative was of a similar although less vocal asset to the authority; CASA even brought along their new PMO – both an Officer and gentleman – in all ways; and, not to be underestimated”. “I should also mention the AAT Members were patient, courteous and receptive – in short there was ‘reasonableness’ in spades”.

So why the Choc Frog, howls the mob?

“OK – one big, huge fault; and, one very small glimmer of ‘hope’. The ‘fault’ lays within the industry’s CASA enforced, reactive approach to CASA”. “This, CASA have generated themselves; reform of the regulator is, to most ‘operational’ minds essential, the sooner the better – Amen”.

“However, today a ‘safety case’ was examined; and, without doubt, it all made perfectly good ‘operational’ sense – seriously, it did.” But then, the sun shone – there may be ways and means to satisfy the ‘safety case’ (as explained by an expert) and the restrictions imposed so as to satisfy both legal and operational safety, without arbitrarily preventing a pilot earning a crust, without endangering anyone and within the reasonable ‘safety’ case CASA have mapped out”.

“The ‘loss’ was that we all had to go to such lengths to arrive (at great expense) at the logical starting place for sane, sensible, balanced operational and legal discussion”.

“The win – both sides now understand the arguments of the other – there is a way forward – with discussions of sensible, operational and safety provisions being melded into a situation with which all can abide”.

“None of this could have been possible without a venue where both parties could express and examine ‘the details” “The mere fact that CASA and the ‘victim’ were willing to continue ‘discussion’ to see what may and what may not be possible rather than relying on the AAT making the decision for them, is IMO a great step forward.” So I say – well done CASA, well done Avmed and nicely done AAT”. “I’d like to award the AAT Members a Choc Frog apiece – but – we can’t, so a thank you, for patience and forbearance will have to do”.

That is the short (potted) version – I will second the Choc Frog motion; if only in the hope that we can see more and more of direct engagement with the ‘aggrieved’ outside of the AAT, particularly on medical matters. As TOM say’s it was easiology for him with Avmed; cut and dried, cause, effect and prognosis clearly defined; it’s when things become ‘borderline’ that the ‘best’ results – for all - may be obtained through informed discussion and a clear understanding of the ‘other fellah’s point; only fair and reasonable  I’d say……Provided that it takes two to Tango is realised. Quid pro quo?

Can’t believe I’m saying this – but well done today CASA, I’d trust TOM’s assessment. More please, you have no idea how TOM’s adventure (abridged – sans colourful language) has encouraged folk to seek ‘meaningful’ dialogue prior to adopting a combative stance. A simple, clear explanation of ‘why’ CASA have made the decision is most helpful.  Much more peaceful – like anyfing………

Toot – (walks away shaking head) toot. O&E excepted – ‘tis late.

[Sandy Reith]

Stockholm syndrome writ large, could be said, but thanks be that some intelligence is showing. Certainly in contrast to the ongoing miserable and unremitting savagery against our industry, vis., charter, flying training, CFS and the bureaucratic cleavage of GA administration with the wrongheaded low weight categorisation. The latter split should never have been enacted, it is of continuing detriment to all Australians.

Having transitioned to the new Basic Class 2 medical certificate I can say this is a vast improvement in cost and convenience to myself, but this does nothing to negate the stupidity of disallowing IFR or instructing under this new system, just to mention two of the many glaring and unreasonable impediments to gaining a medical fitness approval to fly.

[Kharon]

Utopia or Common sense?

Too true Sandy; all too true. Operationally, CASA remain unpardonable.  However I did get a chance to have a long chat with P7 and to be honest – I reckon there is a faint hope that some medical sanity may prevail, provided CASA can be approached and a suitable vehicle can be found to allow ‘in-house arbitration’ between Avmed and the ‘victim of illness’. The nuts, bolts and rules would need to be worked out, as would the rules of engagement; for example legal counsel being allowed; or not allowed and the right to persist with a debate in the AAT or another venue. The ‘bear’ is policy – not the rules; but that is a discussion for a later date.

It is, as TOM say’s a bit of a Utopian notion. That said, in the case he witnessed, it was seriously possible that a couple of years of time, money, angst and aggravation (for both sides) could have been saved by a ‘sit down’ in which the CASA reasoning was explained in lay terms; the ‘victim’ being made fully aware of the CASA position and the reasoning behind the decisions made. Apart from being bloody good PR it would have been highly ‘cost effective’ and time saving.

The beauty part would be ‘operational’ – where a medical condition can impact being of critical importance to all, pilot, chief pilot, the public and CASA. With a sensible discussion the pilot in question may be ‘useful’ in certain operations; for example the ‘as or with co-pilot’ rider to a medical is the easiest to examine. Capt’ X is not completely disqualified, but Single pilot ops are not on. If it were possible to examine the ‘risks’ – across the board and tailor make operational medical restrictions to a case, it would be a whole lot quicker, cheaper and easier for everyone to get on with their lives.

It would take time and effort to do this; not to mention trust and honesty. This is why TOM thought a Choc Frog award was merited. Had CASA explained in the first instance their concerns as clearly as they expressed them in the AAT - then the trip to the AAT bunker could have been avoided. As it stands now, a negotiated settlement is in hand which will, with any luck at all, provide a sensible result, without compromising the operational or legal safety of anyone.

It is a fine idea; one I can support. Whether CASA want to play nice and industry cares to trust the Authority to do the right thing is up for grabs. As TOM said – the way CASA behaved during the hearing was excellent and the ready agreement to ‘discuss’ the matter between the ‘victim’ and themselves was a little ray of sunshine; it was just a pity that matters needed to end in conflict before common sense prevailed. Perhaps some good for all may result from the encounter – that would be nice – wouldn’t it?

Aye well, it’s all above my pay grade; to many if’s, but’s and maybe’s for me. But as an idea – I like it. We can hope the new PMO (nice fellah TOM reckons) has the wisdom to see a way to ease the pain of medical restriction confusion, save the aggravation – who knows……….

Toot – toot.

[Kharon]

SCLP-1988 off the UP certainly a member of the IOS.
A tad pissed off do you think?


"a biased, intellectually dishonest regulator"
An excellent description of an out of control government
authority that abuses its absolute power.

Now to vent.

After being away from Australia for decades, I'm shocked at the universal hatred pilots have towards
CASA.

Its reflected in the number of senior pilots who cannot afford the financial or emotional stress of a complying with all the CASA requirements that often include requirements that are not required by other ICAO countries.

Its tragic that a government department has grown into a monster that is out of control and beyond pale.

Its' own rambling writing shows the "intellectual dishonesty".

I noted that LOSA used the enforcement word "audit" whereas the FAA use the word "assessment".

The FAA use of the word "assessment" implies a collaborative approach.

The medical questions differ from that of the New Zealand application that is more realistic , more practical and actually covers more without being "intellectually dishonest".

CASA's medical questions appear to be designed for "entrapment", to be able to find a literal fly spot one the wall in order to gain a conviction for a false statement.

I agree that the "closing" of the application after you submit it, is offensive.
It is easy to forget to include answers to questions that could involve trying to recall
a visit to a doctor decades earlier about a matter that was so trivial you don't even bother to note it.

CASA fail to qualify their questions. Its overboard, its a tragic pretense of safety when its more about ever escalating the bureaucracy and justifying the expenses that they force pilots to incur such as the fee for submitting a report.

To project this forward, as to where CASA may be going,
take a look at New Zealand's $120 charge for filing a medical or their ability to charge $284 an hour for doing work on a medical certificate.

Its effectively penalizing those who have additional health concerns
that need addressing.

Its a form of intimidation, a disincentive towards full disclosure and fails to honour
the principle that safety interests are best served with a collaborative approach.

The CASA approach is turning a medical from an opportunity to meet with a expert on aviation medicine to a meeting with a representative of the CASA gestapo.

What is really offensive is CASA's name, its that word "Safety" that
is a political statement, a delusional idea that they are entitled to do anything they like to increase their own bureaucracy in the name of "safety" that is often the complete opposite.

Every other country refers to themselves as an "Aviation authority" or Department of Transport"
which is what Australia used to call its aviation authority.

Every time I call CASA I want to puke. You are forced to endure their endless passive aggressive dictatorial announcements that contain a message of fear and intimidation.

Its that "tone of voice" that you sometimes hear when you are talking with one of their "officers".
Its that same tone of voice you get from those who are accustomed to abusing absolute power.

Take the way they tell you that "no one is available" when what is really happening is you are going to join the queue to speak to someone. Its designed to mislead a listener into giving up on their call, to get rid of callers. That is, they don't want you to call them. Its part of the sick nature of their corporate attitude that is systemic, habitual and unfortunately, multi-generational.

The arrogance is mind boggling. They threaten to terminate a call upon being asked
any simple question or infer on the phone that you are stupid for asking a question to which the answer is obvious to them.

These are not public servants, or "representatives" but "officers".
When did that change occur?

My view is that the entire legislation needs to be rewritten to something that is modeled on the simple language and easy to follow language with the universal terminology of the FAA.

Why is it that CASA sees a need to remove every noun, adjective and acronym used by the FAA and replace it with some devious figment of a CASA narcissist?

The CASA name is offensive.
Civil and Safety are two words that need to be removed.

[Peetwo]

No winners here? - Must've been a quiet news day...  

Via the Oz:

Tribunal grounds pill-popping Qantas pilot


A Qantas Airbus A380 aircraft is seen taxiing at Sydney Airport.

• EXCLUSIVE
  ROBYN IRONSIDE
  AVIATION WRITER
  @ironsider
  [img=0x0]https://i1.wp.com/pixel.tcog.cp1.news.com.au/track/component/author/6e7c15929181150836944cea1b4d0979/?esi=true&t_product=the-australian&t_template=s3/austemp-article_common/broadsheet/components/article-author/widget&td_bio=false&td_bylinetitle=Aviation%2520Writer&td_location=none[/img]
  
• 12:00AM APRIL 23, 2019
  

A pill-popping pilot flew inter­national services for Qantas on A380 aircraft after failing to disclose the extent of his drug taking.

A hearing before the Administrative Appeals Tribunal revealed former Qantas second officer Nathaniel Whitehall was taking large quantities of opioid and benzodiazepines for back pain in the last three years of his employment. In any given month, Mr Whitehall was prescribed between 28 and 252 oxycodone tablets, 20 to 80 Panadeine Forte and 20 to 40 Tramadol tablets.

The side-effects of the drugs include drowsiness, dizziness, nausea, weakness and headache.

He was stood down from duty in November 2015 when fellow employees raised concerns with Qantas management, but returned to flying 10 months later after back surgery and testing negative to drugs. Within a month, he was again taking the painkillers and returned positive tests for opioids and benzodiazepines with a private doctor. The results were not shared with Qantas or the Civil Aviation Safety Authority and Mr Whitehall continued to work as aircrew.

In April 2017, NSW police contacted CASA to express concern that Mr Whitehall might be ­addicted to OxyContin, another name for oxycodone.


Former Qantas pilot Nathaniel Whitehall. Picture: Bob Finlayson.

CASA sought his prescription drug history for the past five years but he failed to supply the information. When his Class 1 medical certificate came up for renewal in October 2017, CASA refused his application, effectively grounding him from flying.

The AAT found in favour of CASA affirming the decision not to renew Mr Whitehall’s medical certificate. “We do not accept the applicant’s explanation for failing to disclose his OxyContin use. He is an intelligent man and he would have known that it was a matter of great relevance to his employer,” said the ruling by AAT deputy president Ian Hanger and senior member Stephen Lewinsky.

“The policy of Qantas makes it clear the use of opioids is not compatible with safe flying duties, and that pilots using opioids would not be rostered for flying duty.”

Mr Whitehall had claimed that CASA refused to renew his ­medical certificate after an anonymous complaint was made by a neighbour about his mental state.

He is suing CASA for defamation in the NSW Supreme Court on the basis the agency shared the damaging complaint with his then employer.

“This is far from over,” Mr Whitehall told The Australian.

Qantas declined to comment on the case but it is understood the airline no longer employs Mr Whitehall.

Mr Whitehall also lost a bid to have his name suppressed in the AAT’s published ruling because of the sensitive nature of the evidence.

Hmm...makes you wonder how many other Sky Gods are dealing with a pain killer addiction but too afraid to fess up due to their job being at jeopardy...

MTF...P2  

[Kharon]

A righteous result…

There are quite a few folk who are (and many more who should be) following a well written series of posts by C. McKenzie Esq. and others – HERE - related to pilot medical certification.

No matter under which civil aviation jurisdiction you operate in a ‘medical’ is a fact of a pilot’s life – inescapable – in one form or another, the pilot must be demonstrably ‘fit’ to fly. In both theory and fact, this is not a bad notion. Many hold, or have held medical certification issued by more than one regulator and have first hand experience of the ‘process’ in the USA, UK, Europe, Africa and even Asia – across the planet. Without fail everyone bemoans the Australian ‘system’. But, I need to clarify that: the actual requirements of the ‘medical’ stand alone are not onerous; but what the Avmed administration can do with ‘paperwork’ and results defies logic; what can happen in an appeal against a ‘silly’ ruling during an AAT hearing beggars imagination.

There is a strong safety case against the Avmed system which should be prosecuted until Avmed is forced, by law if need be, to modify their counterproductive behaviour. Here’s why.

How many non aviation or transport folk (Muggles) do you know who have a heart check up every half year; who have their eyes checked every second year; or, their blood sugar levels checked every year – if they’re not feeling poorly? Not too many I’d wager. But, when you think about it – no matter what you do, these are essential checks and ‘catching’ a potential killer, like heart attack, early is not only sensible, but it would save a small fortune. No one, blokes in particular likes to be trotting off to local vet every time their bowel movement is delayed, or their head aches, or they have a tummy ache; mostly the three day rule applies – if ‘whatever’ persists for longer the sensible majority will make an appointment and get it sorted. Ask your life insurance company if you can't believe me. It is, IMO, is a thing which  needs to be actively promoted. Enter the dragon.

Avmed are making this ‘routine’ self maintenance a thing of fear, more and more folk are disregarding early warnings of a serious impending condition, just in case a prescribed ‘treatment’ is viewed as a licence cancelling ‘thing’ by Avmed - despite expensive specialist advice to the contrary. This is where the wheels come off. I know lot of blokes who have had their ‘medical’ saved through the DAME check up system, many who have caught a potential for damaged eyesight through the eye check, many who have had heart problems caught early enough to prevent serious ramifications. In short, regular medical health checks are a good thing. Proper early diagnosis and effective treatment even better; specialist, qualified medical advice should be enough for Avmed to support the issue of a medical certificate.  Ask your life insurance company if you can't believe me.

The other down side is Clinton’s case – what a kerfuffle – no one should be subjected to that. Yet the Avmed section of CASA keeps the AAT very busy. This is also counterproductive and detrimental to the well being of aircrew. The very thought of having to prosecute a case through the AAT system is enough to keep aircrew silent about any ailment and simply put up with it, keep going and keep very quiet about whatever ails ‘em.

The logic is flawed; particularly so when ‘statistics’ are analysed. For example, the greatest cause of pilot incapacitation is ‘Gastro’ – now, if that is caused by a crook prawn and is not a repeat event – who’d worry? But – and here’s the rub – suppose it becomes a regular event? The sensible man would trot off to the local vet, get it sorted and get on with life unless it was sinister; then whatever treatment and prognosis was issued by the specialist treating should be enough for anyone – diagnosis, treatment, prognosis – end of; and enough for any man – except CASA Avmed. Now the battle commences, reinstatement of the medical certificate  a mountain of epic proportions – where the opinion of your highly qualified, expert, experienced specialist becomes a plaything for CASA legal to decry, provided that is  you afford the cost of defending the specialist opinion, after paying for that opinion.

I say, Jolly well done Clinton a great effort on behalf of the vast silent majority. I sincerely hope the effort is not squandered on those who are too terrified to speak out against the clearly flawed, destructive system Avmed have built and fiercely defend.

A key to the Tim-Tam cupboard has been awarded, along with your gold start. Thank you.

Toot – toot.

[P7_TOM]

A pleasant change.

It is not possible for a lay or even a qualified professional to understand the higher logic of Avmed criteria; the why and how medical decisions are made. Some nations would think CASA balmy, others would think them too casual – aviation medicine and ‘fitness for flight’ is an ever running debate, way above my pay grade.

What does fall within my ambit is the way the Avmed system treats me – personally. I am a great believer in praise where it is due and IMO the current ‘front of house’ Avmed system merits praise and encouragement. What with one thing and the other, I’ve been dealing with Avmed over the last couple of months and I must say I am impressed with the level of service. No extended periods of ‘holding’ : always, without exception a pleasant, helpful voice at the other end which not only knew the system but was willing to assist; phone messages and email promptly answered; when you add that to an efficient notification and advisory system, you have to say well done.

So; well done Avmed admin: well done indeed and thank you for courteous, efficient, human service. It is a very much appreciated, pleasant and welcome change.

[Peetwo]

Finally a good news story - 

Via today's Oz:

---

Colour blindness no impediment to flying for RFDS pilot Greg King



In 19 years of working for the Royal Flying Doctor Service, Greg King covered three million kilometres — or the equivalent of flying to the moon and back four times.

Based in Mount Isa in northwest Queensland, King attended all manner of medical emergencies, from plane and car crashes to horse accidents, and made many friends along the way.

But perhaps the most impressive aspect of his glorious career is the fact it happened at all.

“I was told many years ago by the Civil Aviation Safety Authority I could never fly a glass cockpit because I failed what was then called a ‘last chance colour vision test’,” King says.

“I’ve been flying a pure glass cockpit now for 10 years on my own, so colour vision is not a ­hurdle.”

He has pilots Arthur Pape and Hugh Jonathon Denison to thank for eventually achieving that dispensation.

Both fought CASA in court, winning the right to fly at night despite being among the 8 per cent of the male population with colour vision deficiency (CVD).

“There are still very few people in Australia who have that dispensation (to fly at night with CVD),” King says.

“Others give up because CASA just throws too many hurdles in front of them.”



It’s a rule King would dearly love to see reversed, convinced that CVD has no adverse effects for pilots.

“As far as CASA is concerned, if you’re not colour perfect you can’t fly. Now the US Marines have colour-defective pilots and they have a better safety record than the colour-perfect pilots,” he says. “But CASA has this bee in their bonnet for some reason and it’s an International Civil Aviation Organisation (ICAO) thing as well.”



His wife of 47 years, Jane King, says flying for the RFDS was all Greg ever wanted to do, but when he got his private pilot’s licence at the age of 34 he was basically told to “forget it”.

“He went for an interview at Sunshine Coast Air Charter and as we were walking out the door, the guy said to me ‘talk him out of it, he won’t get a job’,” Mrs King recalls. “I said ‘I can’t do that’, and then Greg worked for that man, Lester Neideck, for nine and a half years.”

When the opening arose with the RFDS, King did not hesitate, taking a two-year contract based in Mount Isa — which turned into almost two decades.

“Mount Isa is the best flying you could possibly get. It’s magnificent country, but the people is what the job’s all about,” he says.

“You’re out there helping someone in the outback and they’re always pleased to see you no matter what time of day or night you turn up.” Often, landing strips would be lit with just car headlights or toilet bowls on fire with kerosene, and King proved time and time again his proficiency as a pilot regardless of CVD.

“Safety is the essence of everything as a single pilot and in aviation if you stick to the rules, it’s inherently very safe,” he says.

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