A full bench of the Federal Court (June 2011) overturned a Civil Aviation Safety Authority ruling affecting diabetic pilots. The final outcome will be of interest to all Australian pilots with diabetic conditions.
Our special thanks to aviation lawyer Chris’s McKeown for walking us through this unfamiliar legal terrain.
On 6 June 2011 the Full Bench of the Federal Court confirmed a decision of a single bench of the Federal Court which set aside a decision of the AAT against a diabetic pilot who was contesting a CASA decision.
Insulin-dependent private pilot Roderick Ovens, who had been diagnosed with type I diabetes at the age of 12, had held a private pilot’s license since 1981, and since December 2008 has used an insulin pump that enables him to monitor and manage his blood sugar levels. A condition of his license was that he only flew in the company of a ‘safety pilot.’
Mr Ovens wrote to CASA in May 2009 requesting the regulator issue him with a medical certificate with the alternative condition that he adhere to the American (FAA) protocol for Type 1 diabetics which would then permit him to fly solo. He told CASA that he wished to fly up to 300 hours a year for social and recreational purposes, and has good sugar control, particularly after he installed an insulin pump in 2008.
CASA however refused the request on the grounds that “[Mr Ovens] does not meet the safety requirements under the Act,” and issued his medical certificate for 12 months “with safety pilot”.
For over 14 years the USA has permitted pilots with Type 1 diabetes to fly solo privately, provided that they adhere to a strict regime of monitoring their blood sugar level before and during flight. There are over 500 Type 1 pilots flying solo in the States and to date, there have been no incidents relating to their diabetic condition when flying under the FAA Protocol. A significant number of FAA air traffic controllers participate in a similar program, and the FAA asserts that that there has never been an aviation incident among those groups relating to their diabetes.
CASA had released a draft Protocol prior to the hearing; however it contained a stipulation that pilots could not fly if they had used insulin within 90 minutes of their intended flight.
Endocrinologists generally support the use of an insulin pump because it constantly supplies very small amounts of insulin, rather than pilots injecting themselves with a larger dose as required from time to time. Although it is the insulin that lowers the sugar level of a diabetic, this is the dangerous aspect of the Type 1 diabetic’s treatment. A low sugar level induces the state of being hypoglycemic – referred to as “having a hypo,” which is a very dangerous condition at any time, let alone when flying an aircraft. The person could lose consciousness and does lose cognitive function while having a hypo. Therefore if pilots hold their blood sugar levels at a slightly elevated amount for the few hours they fly, there is little possibility of the problem occurring during those few hours of flight, which is the intention of having a protocol.
To manage this the FAA Protocol requires pilots to check their sugar levels within thirty minutes of the intended flight, then within an hour of takeoff and each hour thereafter. The sugar level must be between 5.5 and 16. If pilots test their blood to find the level below 5.5 they simply eat 10 grams of sugar. If the level goes above 16, they cut their flight short and land. If operational requirements are such that it’s not possible to test the sugar level, pilots must take 10 grams of sugar and test themselves in the next hour. If they can’t again do a test they take another 10 grams and land. Pilots must check their sugar level within 30 minutes of landing unless operational requirements preclude this occurring, whereby they simply eat 10 grams of sugar and proceed to the landing.
The AAT appeal
At Mr Ovens’ hearing in the AAT took account of the CASA Protocol to the exclusion of the FAA Protocol. So notwithstanding that Mr. Ovens prepared his case on the basis of the FAA Protocol, the AAT incorrectly, as later confirmed by the Federal Court, decided the pilot’s application exclusively on the new CASA Protocol. The amended CASA protocol was not before the Tribunal at the commencement of the hearing to be tested by examination of medical witnesses. The draft protocol was available, but because of its prohibition of insulin use within 90 minutes of flight Mr Ovens largely ignored it. The AAT decision was based on the finding that there was no evidence of his ability to fit within certain parts of the new CASA Protocol. Given that CASA must have known of the existence of its own and now amended protocol, it is not easily understood why it only tendered the amended protocol at the eleventh hour. Was it to avoid argument comparing its protocol with that of the FAA? The new CASA protocol permits the use of an insulin pump, but the pilot did not know of this amendment until the eleventh hour.
Federal Court appeal
Mr Ovens therefore appealed to the Federal Court. A single bench of the Federal Court held that the AAT had not accorded the pilot procedural fairness and ordered the matter be determined again in the AAT.
Apparently unhappy about this, CASA then appealed to a Full Bench of the Federal Court. On 6 June 2011 the Full Bench confirmed the earlier decision. CASA was held liable to pay the pilot’s legal costs in both Federal Courts.
CASA’s behavior in not declaring its amended protocol before the AAT hearing commenced might have caused the pilot to waste legal fees in that first AAT hearing. This remains to be seen.
The Full Bench of the Federal Court ordered the matter back to the AAT for argument on the issue of whether the CASA Protocol should apply, or some other protocol. Why does CASA not simply follow the FAA’s well proven protocol? Watch this space.
This article first appeared in June 2011 in AviationAdvertiser. Due to an unprecedented number of pilots now being denied their flight crew medical by CASA when they are diagnosed with type 2 Diabetes, it is widely believed that now is the time for CASA to reconsider its overly demanding requirements and accept those established by the FAA and other first world agencies which conform to ICAO standard recommendations and practices.
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