1.

In this article I report and comment on a decision of the AAT dated 22 December 2006 called Serong and CASA [2006] AATA 1123. I rely heavily for my report on the words used in this decision and the presented therein medical terminology. In my respectful opinion, it is an enlightened decision showing what I say is the preferred attitude to matters aviation.   
 

2.

In this decision the AAT varied the CASA decision to ground a pilot after he developed type one diabetes. CASA took the attitude that once you were a type one diabetic you were grounded from solo private operations. If you were unlucky enough to develop type one, you were then required to always have a co-pilot when flying. This AAT decision gives hope at least to private pilots who might be diabetic and dependent on injections of insulin. This AAT applicant was a commercial pilot when he developed type one diabetes. He sought to retain his class one medical. However, the AAT only granted a conditional class two medical, thereby limiting his operations to private.

3.

There are three medical standards or classes in flying or handling VH- registered aircraft. A class one is required by all commercial or Air Transport Pilots Licence (ATPL) holders. A class two is required for private pilots, glider and free balloon pilots. A class three is required for all Air Traffic Controllers. The 1998 Civil Aviation Regulations in Reg 67.195 permits CASA to issue a medical on “any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person.”

4.

Diabetics are either type one where a person is dependent on injections of insulin or type two where a person can control their diabetes by tablets or other means like diet and exercise.
 

5.

All diabetics may suffer two conditions which mark the extremes of the diabetic condition. First and more serious in relation to loss of control is the condition Hypoglycaemia or Hypo incident. This is when the blood has insufficient glucose. A Hypo incident can lead to sweating, weakness, blurred vision, mental confusion, incoherent speech, coma and convulsions, just to name a few symptoms. This Hypo condition can be subtle and difficult for a diabetic to detect and is the main concern to diabetic pilots. If there is a prolonged unawareness, the individual is said to be at risk of severe cognitive dysfunction without warning. While this is the more serious end of the diabetic condition, it is also the easiest to treat and treat quickly, by simply eating some sugar.
 

6.

The second is hyperglycaemia or Hyper incident, when the blood has too much glucose.  In extreme cases it may lead to diabetic ketoacidosis causing nausea, vomiting, abdominal pain and can progress to cerebral oedema, coma and death. Too much glucose over years can lead to vascular complications such as retinopathy.  It seems this is the end of the diabetic scale which has the more long term damaging effects, rather than the more short term but more immediately dangerous loss of control effects seen when there is not enough glucose.
 

7.

In this AAT decision the Tribunal (Member Fice and Dr Breen) was of the view that CASA seemed to only be satisfied if there was a zero risk of a person suffering a Hypo attack. The Tribunal recognised that CASA’s standard was set at too high a level.
 

8.

In the United States the Federal Aviation Administration (FAA) has, since the early 90s, permitted private pilots who are type one diabetics to fly solo. They fly under a strict regime of checking blood glucose levels and must have at the ready, a supply of easily digested glucose foods. The Tribunal found that the FAA experience clearly established that such risks (of a Hypo attack) can be reduced to an acceptable level by implementing the FAA protocol.
 

9.

This FAA protocol was examined by the AAT in a previous matter in 2003.  (Re Badaoui and CASA [2003] AATA 1059). In that case the Tribunal concluded that the protocol was still experimental. A Dr Johnston provided evidence for CASA in that earlier matter. He referred to a preliminary report given to an aerospace conference in May of 2003 where it was noted that there were then some 325 pilots licensed under the protocol and five incidents recorded. Dr Johnston told that 2003 Tribunal that he did not know of any details of the five incidents recorded. The Tribunal in the 2006 matter reported that the applicant in the 2006 matter raised a concern about a CASA witness. The Tribunal said - “However, according to Mr Serong, Dr Wilkins who was then the CASA Director of Aviation Medicine, and who gave evidence in the Badaoui hearing, knew the answer to that question but failed to inform the Tribunal that he was aware that there were approximately 364 airmen who had been granted certificates under the FAA protocol and that the four or five incidents referred to by Dr Johnston had nothing whatsoever to do with the diabetes suffered by those pilots.”  The Tribunal, in the 2006 matter, was of the view that had the 2003 Tribunal “…been made aware of the true position regarding pilots who had operated under the FAA protocol, it is quite possible that it would have come to a different view.”
 

10.

The 2006 Tribunal found that the weight of evidence supported the applicant’s claim that his diabetes was well under control and that he met the initial requirements for the FAA protocol.
 

11.

The Tribunal granted the application and varied CASA’s decision thus permitting the applicant to fly without a co-pilot in VFR conditions on flights no longer than three hours. It imposed five conditions:

12.

The Tribunal was of the view that there was insufficient evidence to proceed to decide the question of his class one medical. That was not to say he should not be considered for a class one, but that in this hearing there was not enough evidence of the conditions which must attach to such a licence. The Tribunal acknowledged that there was some evidence of commercial operations by diabetic pilots in Canada. The Tribunal was of the view that the nature of commercial operations varies widely and most are likely to have additional complicating factors.
 

Comment:
 

13.

The conditions placed on the applicant are no doubt extensive and burdensome. One might wonder how a commercial operation would be that different. However, at least we observe a commencement of what is, in my opinion, a proper attitude to flying an Australian VH registered aircraft. That is, it should not be a privilege but more an earned right. A VH pilot is required to study extensively and train before he/she is released at large.  Surely it should then be considered a well earned right rather than a privilege. It is an easy option to simply stop people from flying, but that does little for a pilot’s respect of the AAT or CASA. The AAT should, in my opinion, never be a venue for the confirmation of a punishment. Rubbing someone out of the industry is not regulation. It is usually a lazy, punitive reaction to an incident or state of affairs which can be addressed by a subjective reflection of the facts involved, with a possible imposition of an appropriate penalty, but then only after a Court of Law and not CASA, so determines. CASA in my view needs to keep people in the industry. Punishment, yes when necessary, but having done time for the crime, to then continue in the industry.
 

14.

I was the counsel acting for the diabetic pilot in the 2003 matter. I would find it extraordinary if anyone suggested that CASA had not properly investigated this FAA protocol and the true nature of the 5 incidents. In any event CASA did not reveal anything about the nature of these 5 incidents. It was also pointed out to the 2003 Tribunal, that pilots of ultra light aircraft could fly with only a medical for a driver’s licence, and in the same airspace as VH pilots. The FAA protocol at least offered some monitoring of diabetic pilots. In the 2003 hearing there was medical evidence that Mr Badaoui met the FAA protocol. However, the 2003 Tribunal still decided against that applicant. So what was the underlying reason?  
 

15.

It is in my experience not uncommon to hear counsel for CASA submit along the lines that CASA is the safety expert, and how it knows the ins and outs of the risks involved, so don’t usurp that role, and be responsible for a possible tragedy. How many times do we hear “Safety is paramount”? Certainly, it is a factor, but just because we are talking about an aircraft, doesn’t mean it is automatically elevated to having an accident. In my opinion, members of the AAT might care to stand up to the mentioned CASA type submission, (as the members appear to have in this 2006 decision), and merely look at the facts involved, while not holding an overbearing and unreasonable fear of safety ramifications for aviation matters.  I am concerned that there is a fear concerning aviation matters, a fear that public safety is more affected by aviation matters than others. The reality is, I submit, that flying in VH aircraft is no more dangerous than driving a car, if not in fact safer. Yet the ignorance of public perception continues to persist that to fly a plane one must be a super human being, above the usual standards of humans. I hope that this attitude to aviation matters ceases. Hopefully, we are seeing change as reflected in this 2006 AAT decision.