[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 -