Badaoui and Civil Aviation Safety Authority [2003] AATA 1059 (21 October 2003)

Last Updated: 24 October 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1059

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1677

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ZED BADAOUI

Applicant

And

CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal

Ms G Ettinger - Senior Member

Date 21 October 2003

Place Sydney

Decision

The decision under review is affirmed.

[Sgd] Ms G Ettinger

Senior Member CATCHWORDS

Pilot's licence - whether insulin dependent diabetic should be permitted to fly solo - whether special medical certificate - whether condition should include flying with co-pilot - decision affirmed

LEGISLATION

Civil Aviation Authority 1988 sections 9, 9A

Civil Aviation Regulations 1988 regulations 6.05, 6.06, 6.09, 6.10, 6.11, Schedule 1 Parts 1-4

CASE LAW

Re Chryssanthou and Department of Aviation (1985) 7 ALD 534

Re Wyatt and Civil Aviation Authority (1996) 41 ALD 381

Re Denison and Civil Aviation Authority (1989) 19 ALD 607

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

21 October 2003

Ms G Ettinger - Senior Member

1. The matter before the Administrative Appeals Tribunal ("the Tribunal") was the application of Dr Zed Badaoui, the Applicant in these proceedings, for review of a decision of the Civil Aviation Safety Authority ("CASA"), the Respondent, dated 10 October 2002 (T2). In summary, the Respondent stated in its decision that:

* The Applicant (who is an insulin dependent diabetic) had applied for a special medical certificate under provisions of regulation 6.09 of the Civil Aviation Regulations 1988 ("the Regulations").

* CASA noted evidence given regarding Dr Badaoui's health and blood sugar level control.

* CASA was aware of the situation in the USA, and in regard to other national regulators of aviation in connection with the USA Federal Aviation Administration ("FAA") Protocol approach to medical certification of applicants with insulin-requiring diabetes mellitus.

* CASA observed that Dr Badaoui had produced "no new evidence which would provide a valid reason for it to reverse its previous iterated decisions affecting Dr Badaoui's applications for medical certification. Its offer of 5 June 2002 to issue him a special class 2 medical certificate, valid until 18 May 2003, remains open. ..." (T2).

* CASA noted that regulation 6.10 of the Regulations provides that CASA may issue a medical certificate to a person who does not meet the relevant medical standard if, and only if, CASA is satisfied that issuing a medical certificate to the person will not adversely affect the safety of air navigation.

* CASA stated that the issuing of a special medical certificate to Dr Badaoui would adversely affect the safety of air navigation because Dr Badaoui is susceptible to unpredictable episodes of disabling hypoglycaemia. Accordingly, pursuant to regulation 6.11 of the Regulations, CASA refused to issue a special medical certificate to Dr Badaoui.

2. Dr Badaoui appealed the decision of CASA to the Tribunal on 4 November 2002 (T1), and was represented at the Hearing by Mr C McKeown of counsel, instructed by McCourts as agent for Burridge Harris & Flynn Solicitors & Barristers. The Respondent was represented by Mr I Harvey of counsel, instructed by Mr A Anastasi of CASA.

ISSUE BEFORE THE TRIBUNAL

3. The issue before the Tribunal, standing in the shoes of the primary decision-maker, CASA, was whether it should exercise the discretion pursuant to regulation 6.10 of the Civil Aviation Regulations 1988, to issue a special medical certificate to Dr Badaoui. A special medical certificate as applied for, would permit Dr Badaoui to fly solo as a private pilot notwithstanding the fact that he is an insulin dependent diabetic.

LEGISLATIVE CONTEXT

4. The relevant legislation in this matter is the Civil Aviation Act 1988, in particular sections 9 and 9A and the Civil Aviation Regulations 1988, in particular regulations 6.05, 6.06, 6.09, 6.10, 6.11 and 6.12.

5. In order to make a decision, the Tribunal had to consider first the provisions of the Act, with the accompanying Regulations, and the requirements they set in regard to the medical certification of pilots. By way of background, it is noted that CASA was established in July 1995 following amendments in that year to the Act. CASA has the function of conducting the safety regulation of civil air operations in Australian territory as well as the operation of Australian aircraft outside the country. These responsibilities of CASA are set out in section 9 of the Act, while section 9A provides that whenever CASA exercises its powers and performs its functions it must: "regard the safety of air navigation as the most important consideration." The Act also provides for the licensing by CASA of all pilots and other aircrew, including flight engineers, involved in operating Australian aircraft. The detailed requirements for the licence holders are set out in regulations provided for under the Act, and also in medical standards set under the terms of the legislation.

6. Regulation 6.05 provides that a person may apply to CASA for the issue of particular classes of medical certificate. Regulation 6.06 provides that CASA must issue a medical certificate to a person who applies if, and only if, among other things that person meets the relevant medical standard. That standard is set out in detail, in relation to each class of medical certificate, in Schedule 1, Parts 1-4 of the Regulations. They include the absence of certain abnormalities and disabilities, and also any wounds or injuries or sequelae resulting from an operation or an accident that could entail a degree of functional incapacity or a risk of incapacitation.

7. If CASA does not grant a medical certificate to a person seeking one, that person may, pursuant to regulation 6.09, apply for a special medical certificate. CASA may issue such a special medical certificate under regulation 6.10 to someone who has not met: "the relevant medical standard if, and only if, ... (CASA) is satisfied that issuing a medical certificate to the person will not adversely affect the safety of air navigation". Regulation 6.12 is relevant also in that pursuant to it, conditions may be imposed.

8. The relevant sections of the Act follow. The functions and responsibilities of CASA are set out in section 9 of the Act:

"9 CASA's functions

(1) CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:

(a) civil air operations in Australian territory;

(b) the operation of Australian aircraft outside Australian territory;

by means that include the following:

(c) developing and promulgating appropriate, clear and concise aviation safety standards;

(d) developing effective enforcement strategies to secure compliance with aviation safety standards;

(e) issuing certificates, licences, registrations and permits;

(f) conducting comprehensive aviation industry surveillance, including assessment of safety-related decisions taken by industry management at all levels for their impact on aviation safety;

(g) conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system;

(h) conducting regular and timely assessment of international safety developments.

(2) CASA also has the following safety-related functions:

(a) encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety, through:

(i) comprehensive safety education and training programs; and

(ii) accurate and timely aviation safety advice; and

(iii) fostering an awareness in industry management, and within the community generally, of the importance of aviation safety and compliance with relevant legislation;

(b) promoting full and effective consultation and communication with all interested parties on aviation safety issues.

(3) CASA also has the following functions:

(a) co-operating with the Bureau of Air Safety Investigation in relation to the investigation of aircraft accidents and incidents;

(b) any functions conferred on CASA under the Civil Aviation (Carriers' Liability) Act 1959, or under a corresponding law of a State or Territory;

(c) any functions conferred on CASA under the Air Navigation Act 1920;

(d) any other functions prescribed by the regulations, being functions relating to any matters referred to in this section;

(e) promoting the development of Australia's civil aviation safety capabilities, skills and services, for the benefit of the Australian community and for export;

(f) providing consultancy and management services relating to any of the matters referred to in this section, both within and outside Australian territory;

(g) any functions incidental to any of the functions specified in this section.

(4) In performing the function under paragraph (3)(f), CASA may, under a contract with a foreign country or with an agency of a foreign country, provide services for that country or agency in relation to the regulation of the safety of air navigation or any other matter in which CASA has expertise. Those services may include conducting safety regulation in relation to foreign aircraft under the law of a foreign country.

(5) CASA's functions do not include responsibility for aviation security."

9. Section 9A of the Act provides for the exercise and performance of CASA's powers and functions:

"9A Performance of functions

(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.

(2) Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:

(a) the effects of the operation and use of aircraft; and

(b) the effects associated with the operation and use of aircraft."

10. Regulation 6.05 of the Regulations provides that a person may apply to CASA for the issue of particular classes of medical certificate:

"6.05 Medical certificate: application

A person may apply to CASA for the issue of 1 or more of the following:

(a) a class 1 medical certificate;

(b) a class 2 medical certificate;

(c) a class 3 medical certificate."

11. Regulation 6.06 of the Regulations provides that CASA may issue a medical certificate only if a person meets the relevant medical standard:

"6.06 Medical certificate: issue and refusal

(1) Subject to subregulation (2), CASA must issue a medical certificate to a person who applies under regulation 6.05 if, and only if:

(a) the person submits to the relevant examinations; and

(b) the relevant examinations are carried out by a designated aviation medical examiner, or a medical practitioner, who CASA has directed may carry out the examinations; and

(c) the person answers all questions put to him or her by the designated aviation medical examiner, or medical practitioner, carrying out the examinations that are necessary for the examiner, or practitioner, to find out whether the person meets the relevant medical standard; and

(d) the person authorises the disclosure to CASA and to the designated aviation medical examiner, or medical practitioner, carrying out the examinations of any information concerning the person:

(i) that is within the knowledge of any medical practitioner; or

(ii) that is within the knowledge of any other person who has carried out on the person a physical or psychological examination, or who has treated the person for any illness, bodily or mental infirmity, defect or incapacity; or

(iii) that is held by any hospital or other medical organization;

being information that may help the examiner to find out whether the person meets the relevant medical standard; and

(e) the person meets the relevant medical standard; and

(f) the person has paid any charge under section 66 of the Act in relation to the person's application and any penalty payable under that section in relation to the charge.

(2) CASA must not issue a medical certificate to a person under this regulation if it is satisfied that the person:

(a) has knowingly or recklessly made a false or misleading statement in relation to the person's application for a medical certificate; or

(b) does not satisfy the requirements of subregulation (1).

(3) CASA may give directions setting out:

(a) the relevant examinations to which an applicant for a medical certificate must submit; and

(b) the medical practitioners who may carry out those examinations."

12. Regulation 6.09 of the Regulations provides that, should that person not have been granted a medical certificate by CASA pursuant to regulation 6.06, a person may apply for a special medical certificate:

"6.09 Special medical certificate: application

(1) A person may apply to CASA for the issue of a medical certificate under this regulation if:

(a) CASA does not issue a medical certificate to the person under subregulation 6.06 (1); or

(b) CASA cancels a medical certificate held by the person;

only because the person fails to meet the relevant medical standard.

(2) An application must:

(a) be in writing; and

(b) set out the reasons why the person thinks that the issue of a medical certificate to him or her would not be likely to affect adversely the safety of air navigation."

13. Regulation 6.10 of the Regulations specifies the circumstances under which CASA may issue a special medical certificate:

"6.10 Special medical certificate: issue

(1) CASA may issue a medical certificate to a person who applies under subregulation 6.09 (1) and who does not meet the relevant medical standard if, and only if:

(a) CASA is satisfied that issuing a medical certificate to the person will not adversely affect the safety of air navigation; and

(b) the person has paid any charge under section 66 of the Act in relation to the person's application and any penalty payable under that section in relation to the charge.

(2) CASA must not issue a medical certificate to a person under this regulation if the person has knowingly or recklessly made a false or misleading statement in, or in relation to, the person's application for a medical certificate.

(3) If CASA issues a medical certificate under this regulation, it must enter on the certificate a statement to that effect.

(4) Failure to comply with subregulation (3) does not affect the validity of the issue of the medical certificate."

14. Regulation 6.11 of the Regulations gives CASA the discretion to refuse to issue a special medical certificate:

"6.11 Notice of decision to refuse special medical certificate

(1) CASA must notify a person in writing if it does not issue a medical certificate to the person and must include in the notification the reasons for not issuing the certificate.

(2) Failure to comply with subregulation (1) does not affect the validity of a decision not to issue a medical certificate to a person."

15. Regulation 6.12 of the Regulations provides CASA the discretion to have regard to the medical condition of the person in issuing a special medical certificate with conditions.

"6.12 Special medical certificate: conditions

(1) CASA may issue a medical certificate under subregulation 6.10 (1) subject to any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person.

(2) person must not contravene a condition subject to which his or her medical certificate is issued.

Penalty: 50 penalty units.

(3) A condition to which a medical certificate is subject must be set out on the certificate."

16. Schedule 1 of the Regulations lists a number of general medical requirements that must be met in order that a person may be assessed as meeting the medical standard:

"Schedule 1 Medical Standards

Part 1 General medical requirements

...

Alimentary system and metabolic disorders

...

12. A person who suffers from diabetes mellitus may be assessed as meeting the medical standard if the approved person conducting the relevant examination is satisfied that the diabetes is satisfactorily controlled without the use of any anti-diabetic drug.

...

Part 3 Medical standard No. 2

What is medical standard No. 2?

2. Medical standard No. 2 consists of the general medical requirements set out in Part 1, subject to the following modifications:

(a) omit paragraph 9;

(b) omit paragraph 12, substitute the following paragraph:

"12. A person who suffers from diabetes mellitus may be assessed as meeting medical standard no. 2, if:

(a) the approved person conducting the relevant examination is satisfied that the condition is satisfactorily controlled without the use of any anti-diabetic drug; or

(b) where an oral anti-diabetic drug is used to control the condition:

(i) the person provides evidence that he or she is undertaking on-going supervision and control of the condition; and

(ii) the oral drug is approved by the Director of Aviation Medicine;

(c) ... "

BACKGROUND

17. Within this legislative and regulatory framework, the following general facts and sequence of events in this matter were not in contention.

* February 1994 - Dr Badaoui applies for Student Pilot Licence.

* 16 February 1994 - Dr Badaoui undergoes aviation medical examination - applies for a medical certificate.

* 28 April 1994 - CASA asks for blood glucose readings for three months - not provided at that stage; no medical certificate is issued.

* 3 June 1997 - Dr Badaoui provides BSL readings for previous three months; has 10-15 hours flying training.

* 4 June 1997 - Dr Badaoui undergoes further aviation medical examination.

* 25 July 1997 - CASA determines that Dr Badaoui does not meet the prescribed medical standards and offers to issue a class 2 special medical certificate with co-pilot condition. Dr Badaoui does not agree to the issue of such a conditional certificate.

* 11 February 1999 - Dr Badaoui asks CASA to review its decision to apply a co-pilot condition to the issue of a special medical certificate.

* 1 March 1999 - CASA re-confirms the offer made on 25 July 1997 that it will only issue a special medical certificate to the applicant with a co-pilot condition.

* 21 August 2000 - Dr Badaoui writes to CASA advising that he developed polymyalgia rheumatica in October 1998, and has undergone other tests. Dr Badaoui takes Prednisolone daily and has 158 flying hours

* 11 September 2000 - Dr Badaoui again applies for medical certificate.

* 24 October 2000 - CASA asks Dr Badaoui for daily blood glucose glucometer estimates for previous 12 months.

* 26 October 2000 - Dr Badaoui advises CASA that he had not kept daily blood glucose estimates for previous 12 months.

* 22 November 2000 - CASA confirms that it requires a 12-month print-out of daily BSLs and that it will not offer medical certification without a co-pilot condition.

* 15 January 2001 - CASA formally refuses to issue a medical certificate on the basis that Dr Badaoui does not meet the prescribed medical standard. Dr Badaoui seeks review of this decision at the Tribunal.

* August 2001 - CASA undertakes a review of its application of relevant medical standards to insulin dependent pilots, but does not relax its policy that applicants with insulin-requiring diabetes mellitus should only fly as or with a co-pilot.

* 14 February 2002 - Dr Badaoui withdraws application to the Tribunal and the Tribunal dismisses the application pursuant to section 42A(1B) of the Administrative Appeals Tribunal Act 1975.

* 15 March 2002 - Dr Badaoui advises CASA that he is willing to accept a class 2 medical certificate with the co-pilot (and monitoring) conditions.

* 22 March 2002 - CASA seeks updated BSL readings (for previous three months) and other updated medical information from Dr Badaoui.

* 2 May 2002 - Dr Badaoui receives advice from treating specialist that polymyalgia rheumatica is still active and requires on-going treatment with daily Prednisolone.

* 10 May 2002 - Dr Badaoui undergoes further aviation medical examination.

* 5 June 2002 - CASA again offers Dr Badaoui a class 2 medical certificate with a co-pilot condition and monitoring conditions. Dr Badaoui does not agree to the conditions.

* 12 August 2002 - Dr Badaoui again asks CASA to review its decision not to issue a certificate without a co-pilot condition.

* 16 September 2002 - Dr Badaoui formally re-applies for the issue of a special medical certificate without a co-pilot condition.

* 10 October 2002 - CASA refuses to issue a special medical certificate (the reviewable decision before the Tribunal) to Dr Badaoui, but repeats its offer of 5 June 2002 to issue such a certificate with a co-pilot (and monitoring) conditions.

* 4 November 2002, Dr Badaoui lodges application for review to the Tribunal (T1).

THE EVIDENCE

18. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (as Exhibit R1), and the following other Exhibits:

Exhibit No	Description	Date
A1	Statement of Dr Z Badaoui with attachments	8 April 2003
A2	Monitoring and managing charts of Dr Badaoui's diabetes mellitus	27 March 2003
A3	Statement of Dr Elisabeth Koenig	28 March 2003
A4	Statement of Mr Stuart Campbell	2 June 2003
A5	Statement Mr W J R Hamilton and attachments	1 June 2003
A6	Letter Mr W J R Hamilton and statistical information	2 June 2003
R2	Statement of Mr Howard McGillivray with attachments	1 May 2003
R3	Supplementary report Dr R V Johnston	29 May 2003
R4	Newsletter No 219, April 2000, Traffic Tech U.S.A.	April 2000

19. Oral evidence was given by:

20. Dr Zed Badaoui, Applicant

21. Mr S Campbell, Dr Badaoui's flying instructor

22. Mr H McGillivray, Flying Operations Inspector, CASA

23. Dr H Leaver, Pilot, Visiting Medical Officer at Grafton Base Hospital in Anaesthetics, friend and colleague of the Applicant

24. Mr W J R Hamilton, Pilot and Instructor

25. Dr Johnston Clinical Tutor/Head Occupational Health, Civil Aviation Authority (England), (by telephone link from England)

26. Professor J Carter, and Professor C Eastman, Endocrinologists who gave concurrent evidence

27. Dr P S Wilkins, Director of Aviation Medicine, CASA (author of the section 37 statement (T3)

28. Dr Eric Donaldson, Aviation Medicine Consultant

DR ZED BADAOUI - THE APPLICANT

29. Dr Badaoui, a practising dentist, whose date of birth is 18 May 1961, and whose statement with annexures was before the Tribunal as Exhibit A1, gave oral evidence.

30. Dr Badaoui was diagnosed with type one diabetes mellitus in 1978. He told the Tribunal that this is controlled with insulin injections, formerly three a day, and presently with the development of polymyalgia rheumatica (since October 1998), which has been treated by two operations for carpal tunnel syndrome (January and May 1999), and Prednisolone, he has four injections a day. He also takes thyroid and other medication including cortisone, and has Vitamin B12 deficiency. Dr Badaoui told the Tribunal that his liver is clear.

31. Dr Badaoui told the Tribunal that he practises with his wife, also a dentist, at Grafton where they have been for over ten years, and where they have acquired various practices. The Applicant has gained a diploma in oral implants from the University of Sydney, and carried out a five hour operation to do nine implants on one occasion. He told me that he carried out the procedure with no ill effects, as he monitors his blood sugar, is acutely aware of what he is doing, and plans his dietary regime according to his duties for each particular day. Dr Badaoui described his days, and how he plans his work, his diet, his monitoring of his blood glucose levels, and his insulin. Dr Badaoui stated that although his wife is present on the premises, he works essentially alone as the practice is busy, and the other dentists are in their own cubicles.

32. Dr Badaoui told me that he has not had a hypoglycaemic attack since 1982, when as a student, he drank to excess, and thinks he must have suffered the attack in his sleep because he was not aware when it occurred, and awoke in hospital. When asked whether his present condition exposed him to unpredictable episodes of hypoglycaemia, Dr Badaoui replied that the history he gave the Tribunal did not indicate that. He acknowledged that he had suffered mild hypoglycaemic episodes, but explained that they had occurred after increased exertion such as with gardening.

33. Dr Badaoui told me that he fully understands the monitoring and management procedures for diabetes, and the actions to be taken should a low or high blood glucose level occur. He demonstrated the use of his glucometer, and described his awareness of a hypoglycaemic state, should it commence. He emphasised this was not based on gut feeling, but on scientific monitoring, and an observation of symptoms such as sweating and tremors which he gets if his readings go below 2.5. or 3 mmol/L

34. Dr Badaoui described himself as hypoglycaemically aware, and added that he had never again after 1982 required assistance from another person in relation to hypoglycaemia. He also explained that in the event of commencement of hypoglycaemia, ingestion of sugar had the required effect within a minute or two.

35. Dr Badaoui also gave detailed descriptions of monitoring of glucose levels in relation to flying, landing and other activities, and commented on the letter of Dr C van Gend dated 1 February 1999 (T16/49), in which the doctor had referred to a suggestion of Dr Badaoui as follows:

"He has suggested that if he is granted a Licence he would omit the rapid acting Insulin before each flight, allowing his blood sugars to be slightly higher than usual. I don't believe there is any danger of producing symptoms due to hyperglycaemia and it would have no significant long-term effect."

36. Dr Badaoui commented that at the time of Dr van Gend's letter, he, (Dr Badaoui), did not know of the existence of any FAA protocol, but said now that he had undertaken the test flights, he had demonstrated that he was able to comply with the FAA Protocol.

37. Dr Badaoui was also keen to establish that his other conditions, including his polymyalgia rheumatica, did not affect air safety. He explained that the polymyalgia rheumatica caused a little stiffness, but that it did not cause any problem in regard to air safety.

38. Dr Badaoui said that he is able to drink alcohol in moderation if he plans his regime accordingly. He submitted various documents recording readings of his blood sugar levels which were at Exhibits A1 and A2 before the Tribunal. Dr Badaoui explained that due to part of the data having been corrupted when he transferred the data from his glucometer (which stores 100 readings), to the computer, the printouts did not accord with specific dates. He was however confident the figures represented readings from March to May 2003.

39. Dr Badaoui told me that he commenced flying in 1997, and is very keen to fly solo. He described flying in his plane, a high performance Beechcraft Bonanza with auto-pilot and GPS, as easier to manage than driving a car because there is less traffic. He also told me that being a dentist and conducting his practice was harder than flying, and that he holds a heavy vehicle licence, and can drive a semi-trailer. The Applicant said that the most difficult thing is a perfect landing, and he even enjoyed that.

40. Dr Badaoui described how he had undertaken test flights in a trial of the FAA Protocol on two occasions (for five hours in 1998, and the second on 13 November 1999, for 3.2 hours), in the company of his instructor, and with Dr Leaver his doctor, who is a pilot, and another person. He was confident he could comply completely with the FAA Protocol. He was able to recite the requirements of the FAA Protocol, and discuss what he would do if he dropped his glucometer, as he actually did on one of those occasions. He also described actions he would take in bad weather, and his knowledge of procedures and instruments in controlled and uncontrolled air space. Dr Badaoui described the equipment on his aircraft, including the GPS. Dr Badaoui also commented on ultra-light aircraft, saying that one simply required a motor driver's licence to fly those.

41. When asked how he would manage the priority issues in an aircraft which he agreed were piloting, over monitoring of blood glucose levels, Dr Badaoui replied that it would not be necessary to compromise the former. He did not agree with the proposition that having equipment on board an aircraft, and being instrument rated meant he would be more concerned with instruments than monitoring his health.

MR STUART CAMPBELL - FLYING INSTRUCTOR

42. Mr Campbell whose statement of 2 June 2003 was before the Tribunal as Exhibit A4, gave oral evidence. He told the Tribunal that he had been a flying instructor since 1991, and that he had flown 150 hours with the Applicant since Dr Badaoui commenced flying with him in 1998.

43. Mr Campbell knew of the FAA Protocol, and described the Applicant taking test flights using the Protocol. Mr Campbell described an incident which occurred with an engine during one of Dr Badaoui's test flights, and explained Dr Badaoui had controlled the situation well. He was confident Dr Badaoui had his testing of blood sugar levels under control, and could fly solo in controlled and uncontrolled airspace.

MR HOWARD MCGILLIVRAY - CASA FLYING OPERATIONS INSPECTOR

44. Mr McGillivray whose statement and annexures dated 1 May 2003 were before the Tribunal as Exhibit R2, gave oral evidence. He explained his qualifications, and said that he had been a CASA Inspector for 13 years, a pilot in the RAAF, and held a helicopter licence.

45. Mr McGillivray told the Tribunal about flight plans, preparation for flights, and described take-off, weather patterns, and the tasks of a pilot during flight. He was asked what could occur if the pilot were to drop his glucometer, to which he replied that if it was within reach, he could retrieve it. He also gave evidence of the requirement for a pilot to anticipate situations more quickly in a high performance aircraft such as the Beechcraft. Mr McGillivray explained that the pilot's licence had to be endorsed to fly high performance aircraft. He said that he would not recommend flying solo for the first time when first flying such an aircraft, due to safety and perhaps also for insurance reasons. Mr McGillivray said that he last flew a Beechcraft Bonanza in 1993, and that it had slight instability but was "dynamically stable". He said that one could take one's hands off the controls in such an aircraft.

46. As to Dr Badaoui's FAA Protocol flights; Mr McGillivray said in his oral evidence that those flights would have been more difficult than going solo because the pilot had three accompanying pilots who were no doubt quizzing him. In his written statement, however, he stated that:

"There is often a vast difference in performance by pilots who are supported by other flight crew, and by pilots who are alone in an aircraft. ... the psychological advantage of knowing that he is not alone ... Anxiety and stress levels experienced by pilots tend to be higher when pilots are flying solo."

47. In his statement, Mr McGillivray detailed the workload of a solo pilot, stating that it was:

"seldom slight and is unpredictable due to many variables. ... The work cycle will include additional tasks if an emergency or abnormal aircraft condition occurs. ... In my experience, in extreme weather conditions, a pilot would be unable to measure blood glucose levels."

48. In closing, and when questioned about the issue, Mr McGillivray agreed that two pilots and two engines were safer than one.

CONCURRENT EVIDENCE OF ENDOCRINOLOGISTS PROFESSOR CRESWELL EASTMAN AND PROFESSOR JOHN CARTER

49. Professors Eastman and Carter appeared before the Tribunal and gave evidence using the concurrent evidence mode. This involved the Tribunal summarising Dr Badaoui's oral evidence, and then each doctor making an opening statement, followed by questioning by the Tribunal, and then counsel in relation to the issue before the Tribunal.

50. Professor Eastman's report dated 4 February 2002 was at T34, and Professor Carter's report dated 28 May 2001, at T28. The Tribunal noted that both doctors were eminently qualified to give evidence in this matter, and have published various learned works in the field. Professor Carter stated at T28/102 that amongst other things he is a consultant endocrinologist in practice in Sydney. Professor Eastman is, amongst other things, a consultant physician in endocrinology at Westmead Hospital, and Director of the Institute of Clinical Pathology and Medical Research at Westmead Hospital.

51. Professor Eastman told the Tribunal that he had received the printouts of Dr Badaoui's blood glucose levels, and had noted numerous episodes of hypoglycaemia. He referred to documentation tendered before the Tribunal as Exhibits A1 and A2, adding that there was evidence deducible from those printouts that Dr Badaoui was aware of changes in his blood glucose levels, and had taken remedial action promptly.

52. Professor Carter agreed with Professor Eastman that the readings before the Tribunal showed fluctuations in blood glucose levels, but noted equally that the results indicated Dr Badaoui clearly was aware of symptoms, and took remedial action promptly as necessary. Professor Carter noted also that there had been no repeat of Dr Badaoui's 1982 hypoglycaemic episode, and that he had not needed assistance from any person to monitor or control his blood glucose since that time. Professor Carter described Dr Badaoui as a highly motivated individual who had a very good track record in regard to his health problems.

53. Professor Carter who has been seeing Dr Badaoui for two years, expressed the view that Dr Badaoui demonstrated exceptional control as to his blood glucose levels, and noted that he had remarkably few complications in his vital areas (the eyes, heart and kidneys). Professors Carter and Eastman both agreed with concern that a situation could arise where Dr Badaoui had an undetected hypoglycaemic attack. Professor Carter added however, that Dr Badaoui developed good classical symptoms such as sweating, and that it was therefore less likely he would suffer a hypoglycaemic attack which was undetected. "The risk was incredibly low", he said. Professor Carter also discussed levels at which cognitive function was lost, and the individual differences between people.

54. Professor Eastman said that he had no personal knowledge regarding the FAA Protocol, but considered that following it would diminish the risk of problems, noting however that the Protocol had not been accepted in the JAA European administrations. He suggested CASA might convene an expert panel to monitor such matters.

55. Both Professors agreed that flying was a "managed time" operation, and referred to the evidence Dr Badaoui gave of planning his food intakes and blood glucose levels when he was operating on a dental patient. Professor Eastman added however, that when driving a car, one could stop to treat oneself in the case of a hypoglycaemic attack, whereas it was more difficult in an aircraft, particularly in the case of bad weather or engine trouble. The witnesses also discussed risk and the measurement of one percent risk as raised by Professor Johnston in relation to the measure used for professional aircrew. Other conditions discussed in that context were also the risk of angina, diarrhoea and aneurysm.

56. The Tribunal noted the medical evidence that hypoxia was not considered a problem in relation to Dr Badaoui because the aircraft he flew, did not go higher than 10,000 feet, and that altitudes were not a factor in this disorder, and hence Dr Badaoui's condition.

57. Both doctors agreed Dr Badaoui's other conditions of vittiligo, anaemia, and thyroid provided no extra risk in connection with flying. It was also agreed that a hyperglycaemic attack was unlikely to interfere with cognitive ability. Both doctors agreed that the low doses of steroids Dr Badaoui takes for his polymyalgia rheumatica would not compromise safety in regard to the diabetes.

58. Professors Eastman and Carter agreed that Dr Badaoui has good recognition of his blood glucose levels and potential hypoglycaemia, and that given his background and the undertaking of the FAA Protocol, it was extremely unlikely that he would suffer an incapacitating hypoglycaemic attack while flying. Mr Harvey questioned the doctors on a hypothetical situation where a hypoglycaemic episode could be commencing but where the pilot might choose to press on rather than take remedial action. Would it not be the natural tendency for a pilot to want to continue and make it to the end of the journey, and in the case of hypoglycaemia then losing control and causing an accident, he asked. The doctors thought that this could be the cause of motor accidents, as well as accidents in the air.

59. Mr Harvey also questioned the doctors regarding the tension between the FAA Protocol, which gives the highest priority to flying the aircraft, and the need for an insulin dependent pilot to test for glucose levels and take remedial action as necessary.

60. As to the testing and test results; both Professors Eastman and Carter stated that they would prefer six monthly tests, rather than the three monthly tests proposed by the Respondent.

DR HAL LEAVER - VISITING MEDICAL OFFICER AT GRAFTON BASE HOSPITAL AND VMO IN ANAETHETICS

61. Dr Leaver whose letter of 9 June 2001 was before the Tribunal as T29, gave oral evidence. Also included in the T-documents at T29/107, was a report of Drs Jambor and Leaver titled "The Insulin Dependent Diabetic Pilot - An Inflight Test of the USA FAA Protocol - Is It Safe?", and the FAA Protocol.

62. During the course of questioning, the Tribunal's attention was also drawn to email messages at T35/223-6 with regard to the FAA Protocol, its application and attitudes towards its introduction in the USA, not all of which were favourable.

63. Dr Leaver said he had known Dr Badaoui for ten years, and was a close colleague and friend. He told the Tribunal that in 1998, he had been with Dr C Jambor, who is an Aviation Medical Examiner and pilot, when the Applicant undertook his first flight using the FAA Protocol. He stated that as Dr Badaoui met the FAA Protocol criteria for insulin dependent diabetic pilots, he and Dr Jambor tested the Applicant in an arduous five hour navigational flight using the Protocol. He said that Dr Badaoui's flying performance was assessed against the Australian Visual Flight Rules Test Standard. Dr Leaver referred the Tribunal to results of tests depicted graphically at T29/122 -126. He stated that Dr Badaoui could trim the aircraft and take his hands off the controls while flying in order to check his blood glucose levels in the same way that a pilot might take his hands off the controls to fold a chart.

64. In his report, Dr Leaver stated that the results of the flight were analysed by a medical statistician, and showed no correlation between error rates and Dr Badaoui's blood glucose levels during flight. He also stated that he and Dr Jambor presented the study to the Aviation Medical Society of Australia and New Zealand at its conference in 1999. Dr Leaver then re-tested Dr Badaoui during a four-hour navigational exercise again using his flying instructor as a control. Dr Leaver emphasised to the Tribunal that undertaking the FAA Protocol under supervision was a stressful event as the Applicant was under the microscope so to speak. He was being assessed as a private pilot on multiple legs, over various terrain, and measuring blood sugar every half hour, which was double the normally required rate. Dr Badaoui had also unexpectedly experienced a threatened engine failure, and had dropped (and retrieved), his glucometer.

65. Dr Leaver added that as an anaesthetist at Grafton, he had worked with Dr Badaoui, and knew that the Applicant had worked without difficulty operating on a dental patient over a four-hour period.

66. Dr Leaver recommended that Dr Badaoui be permitted to fly solo because he had shown that notwithstanding his diabetic condition, he could fly safely. He emphasised that there was no question Dr Badaoui was an experienced and good pilot, and that he exercised excellent diabetic control, and hence suffered minimal risk. Dr Leaver emphasised that clearly, even following the FAA Protocol, would not remove all risk.

MR WILLIAM HAMILTON - PILOT AND INSTRUCTOR

67. The Tribunal noted the objection of the Respondent with regard to the evidence of Mr Hamilton, but decided to allow it, and accord weight as relevant. Mr Hamilton's statement dated 1 June 2003 was before the Tribunal as Exhibit A5, and his letter of 2 June 2003 as Exhibit A6. He listed his qualifications, his experience, and certain information and opinions about aviation activity in the USA. He had also compiled tables comparing Australia and the USA in regard to aircraft and other aviation activities. The data amounted to background information, and information extracted from various reports.

68. Mr Hamilton told the Tribunal in his oral evidence that he had 40 years of general aviation experience.

DR RAYMOND JOHNSTON - CLINICAL TUTOR/HEAD OCCUPATIONAL HEALTH, CIVIL AVIATION AUTHORITY (ENGLAND)

69. Dr Johnston whose report dated 14 December 2001 was before the Tribunal at T31, and whose supplementary report received by facsimile transmission on 29 May 2003 was Exhibit R3, gave oral evidence from England by telephone link. Dr Johnston's Curriculum Vitae was at T31/158; he signed himself Clinical Tutor/Head Occupational Health of the Civil Aviation Authority. Like many of the other witnesses before the Tribunal in this matter, Dr Johnston is the holder of a pilot's licence. He stated that he had done research into insulin dependent diabetes patients, dealing with both hyper- and hypoglycaemia. He referred to various studies in his report at T31.

70. Dr Johnston told the Tribunal that he is a Senior Examiner for the FAA Protocol, and opined that it was "highly likely that Dr Badaoui would meet this protocol [FAA] with three-monthly assessments by his treating diabetic physician to ensure stability of haemoglobin A1 and his continuing ability and willingness to monitor and manage his diabetes appropriately." When questioned about the success of the FAA Protocol, Dr Johnston said that a preliminary report had been given at an aerospace conference in May 2003, noting that there were 325 pilots licensed under the Protocol, and five "events" recorded. Dr Johnston did not know any details of the five "events", or even if they were accidents. Dr Johnston told the Tribunal that in Europe insulin dependent people could not be licensed to fly without a co-pilot, noting also that the FAA Protocol did not have an endorsement for co-piloting.

71. In reply to the question regarding the frequency of provision of automated print-out of daily blood sugar levels (T31/149), Dr Johnston replied that "adequate data from such a well-motivated individual may be obtained over a six-month period." The Tribunal noted that this was in contrast to the three monthly assessments mentioned in his written report. Dr Johnston also emphasised in his oral evidence that there were individual differences in people's thresholds with regard to blood glucose levels.

72. Dr Johnston wrote in summary at T31/154:

"20. ... despite refinements in insulin formulation delivery systems and parameters of control, insulin replacement therapy in 2001 is still far removed from simulating the normal physiology of insulin secretion (Johnston 1995). Whilst these inadequacies remain, patients will continue to be vulnerable to unexpected hypoglycaemia. Although, as has been shown from the review of the literature, some progress has been made to the assessment of those at risk, this risk assessment is still somewhat crude and requires clinical judgement.

21. Reviewing Dr Badaoui's case, noting his good control and his blood sugar estimations, combined with his lack of complications, would suggest that his likelihood of hypoglycaemia is low but, however, there is a degree of unpredictability of these episodes. He does, however, have adequate hypoglycaemic awareness and would appear to be well educated in his diabetic management. In Europe, if the incapacitation event rate associated with a medical condition is 1% per annum or less, this is compatible with restricted class 1 certification and unrestricted class 2 certification. The prevalence of hypoglycaemia in type 1 diabetes does not meet this level.

22. Reviewing the data in the file, I feel that a class 2 certificate with a safety pilot endorsement in the first instance would be a reasonable clinical judgement."

73. In his oral evidence, Dr Johnston added that in the process of flying which included concentrating in the following order on "aviating, navigating, communicating", Dr Badaoui could conceivably miss early signs of hypoglycaemia. He opined that even with a mild degree of cognitive dysfunction, an individual might not have insight into degradation, and his perception might be that all was well when it was not. Such degradation if it occurred, might cause the misreading of an instrument, or otherwise cause an accident, Dr Johnston said. Dr Johnston also revised his view of Dr Badaoui's control of his blood sugar levels on the basis of the fluctuations recorded in Exhibits A1 and A2.

74. In his supplementary report dated 29 May 2003 (Exhibit R3), Dr Johnston referred to a review of Dr Badaoui's blood sugar level readings at pages 232 - 240 of the T-documents, opining that they indicated:

"... numerous episodes of hyperglycaemia with levels which are unacceptable for good quality control e.g. 15.9 mmol/L, 14.6 mmol/L and 14.3 mmol/L. There are in addition, episodes of hypoglycaemia of between 2.7 and 2.9 mmol/L..

I have also reviewed the blood sugars contained in the subsequent documentation, pages 1-12 covering the period 10.06.2002 to 24.11.2002, and these again show episodes of hyperglycaemia, including a level of 20.7 mmol/L. There are episodes of hypoglycaemia and they have been documented at a level of 2.3 mmol/L."

75. Dr Johnston was asked whether Dr Badaoui's smoking could be a problem in regard to the question at hand, to which he replied that smoking did not exacerbate hypoglycaemia, and added that he was not aware of any studies that had been done in the field. Dr Johnston said that he was not aware whether Dr Badaoui would be more susceptible to hypoxia than other people, adding that hypoxia was not an issue in Dr Badaoui's case because the altitude at which he would be flying would be under 10,000 feet.

76. In summary, Dr Johnston opined that he considered Dr Badaoui could pass the FAA Protocol, but that it was reasonable to expect him to fly with another pilot.

DR PETER WILKINS - DIRECTOR OF AVIATION MEDICINE, CASA

77. Dr Wilkins, whose signature appears on the section 37(1)(a) of the Act document, "Statement of Reasons" dated 16 December 2002, (T3), in the matter before the Tribunal, gave oral evidence. He told the Tribunal about his many qualifications, which included having been a US Air Force flight surgeon, being involved in aviation medicine, and holding a Masters in Health Planning.

78. In his Statement of Reasons in which Dr Wilkins traversed the history of Dr Badaoui's licence application, and made comment on the relevant legislation and Regulations, Dr Wilkins stated as follows at paragraph 10:

"10. In May 2002 the applicant produced blood glucose for the period February to April 2002, which revealed numerous episodes of hypoglycaemia and hyperglycaemia." (T3)

79. In his oral evidence Dr Wilkins opined that, contrary to the case made by the Applicant, the degree of control by Dr Badaoui of his diabetes, posed risks. He added that the diabetic could, notwithstanding his usual hypoglycaemic awareness, one day also be unaware of symptoms. This could depend on various factors, including workload. Dr Wilkins also mentioned the health risks of a diabetic keeping himself hyperglycaemic for purposes of aviation.

80. Dr Wilkins concluded at T3/11:

"31. The applicant will pose a risk to aviation safety if issued with a special medical certificate. The applicant may develop a low blood glucose reading in the hypoglycaemic range unaccompanied by symptoms of hypoglycaemia. He will also pose a risk when he is hypoglycaemic in that his higher neurological functions will be affected before any overt symptoms or signs appear.

32. While the protocol developed by the Federal Aviation Administration of the United States of America may assist in reducing a hypoglycaemic or hyperglycaemia episode from occurring, it cannot exclude the possibility of an episode occurring.

33. Further, the protocol has the adverse result of (a) increasing the risk of cognitive impairment from hypoglycaemia which is resultant from intensive insulin therapy and strict diabetic control and (b) creating a distraction from the primary function of the pilot, which is to control the aircraft."

81. Dr Wilkins explained the standards used, and the different classes of licence available, and stated that in Australia there were no insulin dependent diabetic pilots who were licensed to fly solo. Dr Wilkins explained that CASA did not license pilots who flew ultra light aircraft (although the situation with instructors was different, with a Class 2 licence required). He made reference also to T48, the CASA "Designated Aviation Medical Examiner's Handbook".

82. As to the FAA Protocol; Dr Wilkins explained that the Protocol was not automatically available to everyone, and that each case was individually assessed. He explained to the Tribunal that control and hypoglycaemic awareness were not the only factors, but that the duration of the diabetes, the treatment regimen, age of the pilot, cardio-vascular system, eyes, renal function, smoking history and general wellness were also important factors which were taken into account. When asked why the FAA Protocol had not been adopted in Australia, Dr Wilkins explained that it was experimental, and had not yet been demonstrated to be safe.

83. In summary, Dr Wilkins stated that out of the 33,000 medicals carried out, there were 1,000 special medical certificates issued, and noted that all the other insulin dependent diabetic pilots flew with a co-pilot. He acknowledged that Dr Badaoui could fly ultralight aircraft solo, and acknowledged that Dr Badaoui could meet the tests in the FAA Protocol.

84. Dr Wilkins stated that pursuant to regulation 6.10 of the Regulations, there was a discretion to issue the special medical certificate to Dr Badaoui, but stated that he would have to be convinced that it would not be to the detriment of the safety of air navigation, and was in fact not so convinced.

DR ERIC DONALDSON - AVIATION MEDICINE CONSULTANT

85. Dr Donaldson whose letter dated 25 August 2001 was before the Tribunal at T33, gave oral evidence. His extensive Curriculum Vitae detailing his qualifications and publications was attached. Dr Donaldson noted in his letter that he is not an endocrinologist, adding that he has spent his professional life concerned for the safety of pilots and their passengers. He is a qualified military aviator.

86. Dr Donaldson discussed accident risks in his letter, and noted further that:

"... Every flight has a risk of ending in a fatal accident where the ability of the pilot is overcome by the complexity of the flying task. The key response to aviation risk has been redundancy whether it be for instance two magnetos, two engines or two pilots. There is no evidence to suggest that insulin dependant pilots would be superior to non insulin dependant diabetic pilots and they would be at least subject to the same risk of accident. The insulin dependant pilot must have a greater potential for hypoglycaemia which may impact on human factor issues in the cockpit than the pilot with normal glucose tolerance."

87. Dr Donaldson also referred to a common model used to investigate aircraft accidents and improve aviation safety based on the work of Professor James Reason, in which he described organizational processes which seed "organizational pathogens" into a system. He likened a decision to permit an insulin dependent diabetic pilot to fly solo as CASA seeding the system with an organizational pathogen which at some time would penetrate the defence systems and combined with an active failure, lead to an accident. In his oral evidence Dr Donaldson explained the Reason model of measuring risk, and preventing risk, rather than simply analysing the causes of accidents, and assigning blame.

88. Dr Donaldson said that he knew about the FAA Protocol, noting also that there was some dissatisfaction with it.

89. In his oral evidence, Dr Donaldson discussed human factors and decision making factors in the genesis of aviation accidents. He posited the case of a person becoming hypoglycaemic who exhibited irrational behaviour before realising what was occurring, and said that this was a common scenario in hypoglycaemia. He added that even mild hypoglycaemia, and hypoglycaemically aware persons could suffer cognitive dysfunction at some level due to a minor upset in routine. Notwithstanding Dr Badaoui's hypoglycaemic awareness, he maintained that for safety reasons, an insulin dependent diabetic should fly with a co-pilot.

OTHER MEDICAL EVIDENCE

90. In coming to a decision, I have considered all the evidence before me, and have also made particular note of the following reports of medical practitioners who were not called to give oral evidence before the Tribunal.

REPORT OF ASSOCIATE PROFESSOR STEPHEN COLAGIUI - CHAIRMAN, DEPARTMENT OF ENDOCRINOLOGY AND DIABETES, PRINCE OF WALES HOSPITAL

91. Associate Professor Stephen Colagiuri's report dated 26 July 2001 was before the Tribunal at T30. He did not give oral evidence at the Hearing. In discussing hypoglycaemia, Associate Professor Colagiuri opined that a hypoglycaemic episode could be defined either in terms of a low blood glucose reading (below 2.2 mmol/L) or by the onset of typical neurogenic or neuroglycopaenic symptoms. He noted further:

"The major concern is when a person develops a low blood glucose reading in the hypoglycaemic range unaccompanied by symptoms of hypoglycaemia. This is referred to as hypoglycaemia unawareness and can lead to neuroglycopaenic problems without the person being aware." (T30/146-147)

92. Associate Professor Colagiuri stated in his report that, whilst there was no evidence from Dr Badaoui's records that he had ever experienced hypoglycaemia unawareness, he would not favour Dr Badaoui "flying solo" until a protocol similar to that developed by the USA FAA were developed and ratified for use in Australia. He also noted that:

"In addition to this restriction Mr Badaoui should also be required to have a regular evaluation every 3 months to certify his ongoing medical fitness and that his diabetes is well managed including measurement of glycated haemoglobin and evaluation of any hypoglycaemic episodes." (T30/147)

REPORT OF DR CAREL VAN GEND - DR BADAOUI'S CONSULTANT PHYSICIAN

93. Reports of Dr Carel van Gend dated 7 March 1994 (T5) and 3 October 2000 (T22/93) were before the Tribunal, the latter sent with a covering letter from Dr J Alexander to CASA in anticipation of a further application from Dr Badaoui, for a licence. Dr van Gend did not give oral evidence before the Tribunal.

94. In his report of 7 March 1994, Dr van Gend noted that he had seen Dr Badaoui as a patient since 5 January 1993. The report stated that Dr Badaoui has had insulin dependent diabetes since childhood, but that "[c]ontrol had apparently been excellent for many years." Dr van Gend opined that:

"He [Dr Badaoui] has had symptoms of hypoglycaemia in the past, but is very aware of impending hypoglycaemia and invariably takes action to prevent it."

95. In his report of 3 October 2000, Dr van Gend noted that Dr Badaoui's regular haemoglobin readings, which are an indicator of average level of blood sugar over a six week period, have been between 6.5 and 7.4 over the past six years indicating "good diabetic control".. Dr van Gend further outlined Dr Badaoui's medication regime which involved Monotard Insulin and Actrapid Insulin as treatment for diabetes, Thyroxine for mild hypothyroidism, Simvastatin to control high serum lipids, and Prednisolone as treatment for polymyalgia rheumatica.

96. In response to Dr Badaoui's suggestion that, should he be granted a licence, he would omit the rapid acting insulin before each flight, allowing his blood sugars to be slightly higher than usual, Dr van Gend opined:

"I don't believe there is any danger of producing symptoms due to hyperglycaemia and it would have no significant long-term effect." (T22/94).

REPORTS OF DR JAMES ALEXANDER

97. The Tribunal had before it aviation medical examination reports carried out by Dr Alexander of Dr Badaoui dated 16 February 1994 (T4), 4 June 1997 (T11), 11 September 2000 (T21) and 10 May 2002 (T41).

98. I noted from his 1994 and 1997 reports that Dr Alexander expressed reservations regarding the Applicant's health.

99. In his final report dated 10 May 2002, which was before the Tribunal at T41, Dr Alexander recommended that "this stable insulin diabetic be granted a Class 1 medical certificate enabling him to acquire a S/PPL licence."

100. I noted also the concerns of Mr Harvey that certain questions (which he put to Dr Badaoui), had not been completed correctly in those reports. Dr Badaoui said that it was Dr Alexander's report; further, he did not know what Dr Alexander's reservations were, and that Dr Alexander did not communicate those to him.

APPLICANT'S CLOSING SUBMISSSIONS

101. Mr McKeown submitted that what was relevant in regard to this application was Dr Badaoui's ability to control his diabetes, and thus eliminate the risk of flying solo, (not whether he was insulin dependent or non insulin dependent). He submitted that none of Dr Badaoui's conditions other than his diabetes was relevant. Mr McKeown also emphasised that Dr Badaoui had a long history of good management of his diabetes. In relation to arguments put before the Tribunal which suggested that hypoglycaemia could occur without the pilot realising, and where safety could be compromised by cognitive dysfunction, Mr McKeown submitted that Dr Badaoui had been operating on patients for 20 years without problems, and without requiring assistance for his diabetes.

102. Mr McKeown conceded a major hypoglycaemic episode could lead to incapacity, but noted that Dr Badaoui had not suffered such an episode, and was mindful that minor episodes could be anticipated and promptly redressed. Mr McKeown submitted by way of example that Dr Badaoui had to, and did in fact, plan his surgery commitments to take account of such possibilities. He submitted that Dr Badaoui was aware when he commenced feeling hypoglycaemic, that is when his blood sugar level reached 2.8 mmol/L, mainly in the morning. Mr McKeown submitted that as when planning his work, Dr Badaoui's flying would be divided into various periods and could be handled as managed time.

103. Mr McKeown submitted further, that with his training, Dr Badaoui was not an average pilot, but had a good understanding of the diabetic processes and recognised any subtle changes in his blood sugar levels. Mr McKeown referred the Tribunal to Professor Eastman's report, and his discussion regarding cognitive function in hyperglycaemic patients, noting that mild hyperglycaemic levels were not of concern in this case because Dr Badaoui kept his blood sugar levels to above 5.6 mmol/L when flying. He emphasised Professor Eastman's view of hyperglycaemia which I noted was stated at T34/190 as follows:

"There is a substantial amount of scientific evidence to confirm that cognitive function is substantially well preserved in hyperglycaemic IDDM patients, even at substantially elevated glucose levels. ... As previously stated, hyperglycaemia comes on more slowly than hypoglycaemia and is unlikely to produce any significant cognitive or physical impairment until the blood sugar is grossly elevated and the patient becomes dehydrated and develops ketoacidosis. Therefore, I do not think mild, uncomplicated hyperglycaemia is a major medical issue for private pilots undertaking flights of a few hours duration, in a single engine aircraft.

By contrast with hyperglycaemia, even mild degrees of hypoglycaemia will cause cognitive dysfunction. ..."

104. Mr McKeown submitted that the FAA Protocol specifically allowed for insulin dependent diabetics who could meet the tests to fly solo, and submitted that Dr Badaoui did not present an unacceptable risk under that Protocol. He referred me to statistics which indicated there were 278,094 aircraft in general aviation in the USA while the number in Australia was 9,395, submitting that Dr Badaoui would be able to be licensed and not considered an unacceptable risk in the USA.

105. Mr McKeown submitted that Dr Johnston had agreed at paragraph 5 of his report (T31), that Dr Badaoui could meet the FAA Protocol, and that Dr Badaoui had made two supervised flights in which he had passed the tests required under the FAA Protocol. I noted that Dr Johnston stated as follows at T31/149:

"As a senior examiner for the FAA I am familiar with the protocol used for insulin treated diabetics. It is highly likely that Dr Badaoui would meet this protocol with three-monthly assessments by his treating diabetic physician to ensure stability of haemoglobin A1 and his continuing ability and willingness to monitor and manage his diabetes appropriately. However, no such protocol exists in Australia."

106. Mr McKeown also referred to Professor Colagiuri's letter to CASA at T30, noting that Dr Colagiuri stated there that:

"Its (sic) seems unlikely that on the basis of the information provided that air navigation safety would be adversely affected if Mr Badaoui were to pilot an aircraft. However adherence to a strict protocol, similar to that developed by the US FAA would need to be developed for use in Australia and Mr Badaoui would be required to adhere to this protocol. ..."

107. Mr McKeown also referred the Tribunal to the Medical Questionnaire at T41, where at T41/245, Dr Alexander had written:

"I recommend that this stable insulin diabetic be granted a Class 2 medical certificate enabling him to acquire a S/PPL licence."

108. Mr McKeown replied to Mr Harvey's submission that Dr Badaoui was careless, which he submitted was contrary to the impression Dr Badaoui gave to the Tribunal of being diligent and creditworthy. He referred to Mr Harvey's submission that in signing a form at Dr Alexander's examination which contained incorrect information, and without having read it carefully, Dr Badaoui had simply acted in full trust of Dr Alexander who had the task of filling in the form. He also submitted that Dr Alexander had recommended that Dr Badaoui "be granted a Class 2 medical certificate enabling him to acquire a S/PPL licence." (T40/245).

109. I noted that Mr McKeown referred to Professor Eastman's report at T34/194 where Professor Eastman had replied to the question posed to him by CASA, as follows:

"Whether the safety of air navigation would be adversely affected if Mr Badaoui were to pilot an aircraft? (I consider this requires a discussion of what risk there is of Mr Badaoui suffering a hypoglycaemic episode whilst piloting an aircraft and whether such a risk would be completely eliminated by the "protocol measures" proposed by Mr Badaoui?"

Mr Badaoui suffers from multiple different health problems. The only significant risk to the safety of air navigation stems from the possibility of impairment arising from an episode of hypoglycaemia. Risks from adverse events as a consequence of his other medical problems would seem to be quite minor. As previously stated, untreated or inadequately treated hypoglycaemic (sic) could lead to disasters involving the pilot, his passengers and aeroplane and innocent bystanders. It is my view, based on a long experience of caring for insulin treated patients, that the risk of a disaster would be such as to be unacceptable if an insulin treated patient were to fly an aeroplane as pilot in command, without the presence of an appropriately qualified co-pilot. There is no doubt that adherence to the FAA protocol, in both the evaluation of the suitability of the insulin dependent pilot to fly and the strict observance of pre-flight and in-flight protocols would significantly diminish that risk. Nonetheless, it is not possible to completely abolish the risk of an hypoglycaemic attack if the person continues to adhere to normal self-management practices, including appropriate insulin therapy. Of course, one could go to the absurd and eliminate insulin therapy prior to flying to abolish the risk, but at the price of becoming seriously ill and doing irreparable harm to oneself."

110. Mr McKeown also submitted that it was hypocritical of the Respondent, charged with the safety of air navigation, to allow some pilots (in ultra light aircraft), to virtually fly with drivers' licences while refusing pilots such as Dr Badaoui. He submitted the Respondent had not yet made appropriate inquiries with regard to the FAA Protocol.

111. Mr McKeown referring to the Respondent's reliance on Re Chryssanthou and Department of Aviation (1985) 7 ALD 534, submitted that the situation in that case was quite a different one, and that the case could be distinguished, because Dr Badaoui was applying for a special medical certificate.

112. Mr McKeown also submitted in reply that the situation in Re Wyatt and Civil Aviation Authority (1996) 41 ALD 381 was that of a commercial operation with Boeing 747 aircraft, and had no bearing on Dr Badaoui who is a private pilot. He submitted further that Re Denison and Civil Aviation Authority (1989) 19 ALD 607 could be distinguished.

113. In reply to Mr Harvey's submission regarding the position of the Tribunal in regard to Ministerial policy, Mr McKeown submitted that in a case where policy was not fair, it should not be followed. He submitted the policy of CASA in not adopting the FAA Protocol was such a case. He submitted that in Chryssanthou (supra) there was no alternative system available to ensure the disability would be dealt with, whereas in the case of Dr Badaoui, the FAA Protocol provided a proven system for ensuring the safety of the solo pilot. Mr McKeown emphasised again that the only condition of concern Dr Badaoui suffered was his diabetes, his other conditions not impacting at all on his capacity to fly.

114. In summary, Mr McKeown submitted on behalf of Dr Badaoui that he was medically trained, had passed and could meet the FAA Protocol requirements, had controlled blood sugar levels, agreed that submitting three monthly blood sugar monitoring was reasonable, and accordingly submitted that Dr Badaoui should be granted a special medical certificate in order to fly solo.

RESPONDENT'S SUBMISSIONS

115. Mr Harvey submitted on behalf of the Respondent that CASA was prepared to issue a special medical certificate for Dr Badaoui with the condition that he fly with a co-pilot, and noted that Dr Badaoui had rejected that offer. He referred also to section 9A of the Act, and the requirement under the Act that the Respondent advance aviation safety.

116. Referring to regulation 6.10 of the Regulations, Mr Harvey submitted that Dr Badaoui did not meet the relevant medical standards, and that pursuant to Regulation 6.12, there was a separate administrative discretion having regard to the medical condition of the person. It was not a matter of what measures that person could take to control his condition, he submitted. Mr Harvey submitted CASA would be derelict in its duties if it did not take into account all the Applicant's medical conditions in considering the application of regulation 6.12. In that connection Mr Harvey referred to all Dr Badaoui's medical conditions, his multiple immune problems and the large amount of medication upon which he is dependent, referring to it as a "cocktail of remedial drugs".

117. Mr Harvey referred to the evidence of Professor Eastman and Dr Johnston, submitting that Dr Badaoui had multiple immune deficiency problems. Mr Harvey submitted that Dr Badaoui's diabetes was not without complications, and that he was required to monitor and undertake a regular routine in regard to it.

118. Mr Harvey referred to T29/137 in regard to the FAA Protocol, and referred to certain drugs Dr Badaoui took which might block the detection of hypoglycaemia. I noted from T29/37, to which he referred, a statement from the internet at www.aviationmedicine.com/diabetes.htm, entitled "FAA Medical Virtual Flight Surgeons Aviation Medicine/Diabetes" , noting that:

"... An individual feels this dropping blood glucose as anxiety, tremors, hunger, thirst, and confusion. Certain medications block these symptoms and place an individual at risk for undetected hypoglycaemia. The concurrent use of these medications with diabetes mellitus adversely affects FAA certification decisions in diabetics...."

119. Mr Harvey did not elaborate which of Dr Badaoui's medications he considered fell into the above mentioned category.

120. Mr Harvey also indicated that whilst Dr Badaoui had 200 hours flying experience, this was not a large amount in the scheme of things. He also said that whilst Mr Campbell, Dr Badaoui's flying instructor, had indicated that Dr Badaoui was competent to handle the Beechcraft Bonanza and manage his blood glucose levels well, Mr Campbell was not a doctor.

121. Mr Harvey also submitted that whilst Dr Jambor's statements that he had supervised Dr Badaoui undertaking the FAA Protocol and noted his performance passed the tests, gave some level of comfort, it was not a scientific analysis. He submitted on behalf of the Respondent that it could not have confidence that on the basis of this test result, aviation safety would not be compromised. The tests undertaken were at best confined to controlled flying, and the particular situation, he submitted. He indicated that when Dr Badaoui dropped the glucometer during the test flight, Dr Leaver had retrieved it, and noted further at one stage it had jammed. He noted that Dr Leaver had recommended carrying a spare glucometer.

122. Mr Harvey noted further that Mr Campbell, rather than Dr Badaoui, had been the pilot in command on the FAA Protocol flight. Mr Harvey submitted that notwithstanding Dr Leaver's evidence that flying in a test situation had been stressful for Dr Badaoui, it was a matter of common sense that the command and responsibility were Mr Campbell's ultimate responsibility. Mr Harvey submitted that whilst CASA did not allege that Dr Badaoui would have failed in regard to safety, he has always, due to the nature of his licence, flown with a safety pilot present.

123. Mr Harvey referred to Dr Badaoui's September 2002 glucose level readings, at page 7 of the 12 page attachment to Exhibit A1, indicating that the 3.2 mmol/L, and the three 1.2 mmol/L readings recorded were very low. Mr Harvey submitted that notwithstanding Dr Badaoui's controls, the results indicated he was susceptible to hypoglycaemic events. He submitted that at the surgery, Dr Badaoui had his wife present in case of emergency whereas in the air it was a different situation.

124. Mr Harvey also referred the Tribunal to Dr Alexander's examination of Dr Badaoui at T4/12, dated 16 February 1994, and T11/34 dated 4 June 1997, and T21/78 dated 11 September 2000. In that regard, Mr Harvey referred to Dr Badaoui's evidence and admissions that he had not considered the answers to questions asked of him in those questionnaires carefully. In that regard I noted that various questions such as question 6 on T11/34 and question 9 on the same page had been completed incorrectly.

125. Mr Harvey submitted that the above had occurred and did not accord with Dr Badaoui portraying himself to the Tribunal as a diligent and careful person who could implement the FAA Protocol. He noted further that on each certificate, Dr Alexander had recorded doubts about Dr Badaoui's fitness. Mr Harvey also submitted that the doctors who had certified Dr Badaoui fit for flying solo had only seen documents and a snapshot in time, or had not examined him at all, whereas Dr Alexander, who saw him on various occasions, would have been in the best position to certify Dr Badaoui.

126. In that connection, Mr Harvey submitted that whilst the Respondent did not doubt Dr Badaoui's integrity, the clear admissions made by Dr Badaoui about not having completed Dr Alexander's questionnaire with due diligence, notwithstanding that he had had to sign the document, indicated he was not reliable. Mr Harvey submitted that Dr Badaoui had further indicated to the Tribunal by the errors and corrupted data in his computer printouts and his explanations for these, that he did not operate with the rigour and discipline required of someone in his position applying for a special medical certificate.

127. Mr Harvey also submitted that even if Dr Badaoui were certified to follow the FAA Protocol, it might not be applied to the required extent, and therefore in the interests of aviation safety, a second pilot was required. He also submitted, referring to Dr Johnston's evidence, that there was no evaluative material available to assess whether the FAA Protocol was successful, mindful also that some 190 countries had not adopted the Protocol. He referred to Professor Eastman's evidence regarding risk at T34/190-192. I noted there that Professor Eastman referred to:

* Unidentified and untreated hypoglycaemia occurring to a pilot in command in flight being potentially a very serious situation which could lead to a catastrophic outcome;

* Restrictive medical standards erring on the side of caution when faced with a situation or condition whose occurrence or prognosis cannot be predicted accurately;

* Less rigorous flight safety requirements and hence a lower level of medical fitness in the private pilot than for the professional;

* The risk of cognitive dysfunction with even mild degrees of hypoglycaemia, in particular in insulin treated patients who had intensive insulin therapy (3 - 4 insulin injections a day).

128. Mr Harvey submitted also that in following the FAA Protocol, the pilot was essentially required to fly while hyperglycaemic for certain periods, noting that the potential long term effects on Dr Badaoui might be adverse. He noted ethical considerations, and remarked that Dr Wilkins in his evidence, was not as accepting as the Protocol seemed to be regarding the safety of that situation.

129. Mr Harvey also submitted that hypoxia could be a risk at heights lower than 10,000 feet.

130. Mr Harvey referred me to Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, submitting that the role of the Tribunal in regard to acceptance of Ministerial policy was well established by that case. I noted that: in Re Drake (supra), Brennan J expressed the reasons for adopting guiding policies, and the need for the policy to be consistent with the statute at 640 and 641. I have quoted from the judgment further on in these Reasons for Decision.

131. Mr Harvey emphasised that pursuant to section 9A of the Act, notwithstanding that all not all risk could be eliminated, CASA's most important consideration was aviation safety. He referred also to Professor's Eastman's discussion of the one percent rule and referred to Re Wyatt (supra). In that regard Mr Harvey submitted that the one percent rule would be hard to apply. He submitted that the doctors had found it hard to assess the risk of Dr Badaoui flying solo, and noted that Dr Wilkins could not quantify the risk. Mr Harvey referred to Chryssanthou (supra), where he submitted the risk was more easily quantifiable because Mr Chryssanthou was taking Warfarin, so that his blood was more easily monitored and stabilised. I noted that Mr Chryssanthou, whose risk had been quantified as not greater than one percent, had been granted a special medical certificate albeit with conditions, of which one was that he fly with a second pilot.

132. Indeed Mr Harvey submitted, all the doctors whose evidence was before the Tribunal with the exception of Professor Carter, had recommended that in the interests of aviation safety, Dr Badaoui fly with a co-pilot. In that regard, he mentioned the reports and evidence of Drs Johnston, Donaldson, Sham, Caligiuri Wilkins, and Professor Eastman. He submitted that Dr Johnston had emphasised that the FAA Protocol had not been adopted for Australia, and hence Dr Badaoui should fly with a co-pilot. Mr Harvey acknowledged that Professor Carter had mentioned advances in technology such as a wrist glucometer (like a watch), and other future measures which might assist in a case such as Dr Badaoui's.

133. Mr Harvey emphasised also that once licensed, Dr Badaoui could fly any aircraft, imposing further risk upon himself and others, particularly under stressful conditions in either controlled or uncontrolled airspace, and in situations where cognitive impairment could occur without warning.

THE TRIBUNAL

134. The Tribunal is required to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision, in fact a difficult decision about whether or not, pursuant to regulation 6.10 and 6.12 of the Regulations, a special medical certificate can be issued to Dr Badaoui as applied for. I was mindful of the case law raised during the hearing, in particular the cases of Chryssanthou, (supra) Denison (supra) and Re Wyatt (supra).

135. The decision is one which ultimately requires a careful balancing of the private interests of an individual with the broader interests of the community in ensuring that the safety of air navigation is maintained. The most important considerations in making the decision were to apply sections 9 and 9A of the Act, mindful of the role of CASA, and that the issue of the safety of air navigation is paramount. I had then to decide I could be satisfied that issuing a special medical certificate to Dr Badaoui would not adversely affect the safety of air navigation.

136. I moved then to consider the situation of Dr Badaoui. It was not disputed, and I accepted that Dr Badaoui has satisfied the requirements for flying his Beechcraft Bonanza, and it is clear he enjoys doing so. This was so notwithstanding Mr Harvey's submissions regarding what he considered was a low level of experience. Dr Badaoui's competence in flying was corroborated by the evidence of Mr Campbell, Dr Badaoui's flying instructor and Dr Leaver who flew with him in the FAA Protocol test.

137. It was also undisputed, and I accepted that Dr Badaoui, (birthdate 18 May 1961), who is a practising dentist, and is in practice with his wife and others, was diagnosed with type one diabetes mellitus in 1978, and is an insulin dependent diabetic. He told me that this is controlled with insulin injections, formerly three a day, and presently with the development of polymyalgia rheumatica which was diagnosed in October 1998, he has four injections a day. He has been treated for the polymyalgia rheumatica by undergoing two operations for carpal tunnel syndrome (January and May 1999), and takes Prednisolone. He also takes thyroid and other medication, and has Vitamin B12 deficiency. Dr Badaoui told the Tribunal that his liver is clear.

138. The main consideration with regard to the issuing of the special medical certificate was the status and control of the Applicant's diabetes mellitus, although his other conditions may from time to time impact upon the treatment and progress of the diabetes. One effect of the other conditions was reflected in Dr Badaoui's evidence, when he explained how his diabetes had been controlled by three insulin injections a day, prior to the development of polymyalgia rheumatica. As a result of the polymyalgia rheumatica, he now takes four insulin injections a day. Both Professors Carter and Eastman opined that the other conditions Dr Badaoui suffers provided no extra risk and would not compromise safety. Nevertheless I noted the Respondent's submissions that CASA would be derelict in its duties if it did not take into account all the Applicant's medical conditions when considering the application of regulations 6.10 and 6.12, and assessing Dr Badaoui's suitability to hold a special medical certificate permitting him to fly solo.

139. I was mindful that the evidence and submissions of the Applicant centred around the management of Dr Badaoui's blood sugar levels. Examples were given by the Applicant of his planning for dental operations, one of which lasted approximately four hours. I noted also Dr Leaver's evidence that as an anaesthetist he had worked with Dr Badaoui, citing examples of operations lasting three to four hours. Dr Badaoui's responses to descending blood levels were observed in Exhibits A1 and A2, where in some cases low blood glucose level readings were followed within minutes with adjustments, which indicated Dr Badaoui had promptly taken corrective action.

140. However I noted substantial fluctuations in blood sugar levels from the records supplied in the T-documents, and Exhibits A1 and A2, and certain readings which were said to be erroneous.. Dr Badaoui told the Tribunal that the readings at T10/31 & 32 were accurate, but was unable to date them exactly. At page 7 of 12 pages of the Annexure to Exhibit A1, blood glucose readings for 12 September 2002 (as mentioned in the Respondent's submissions in the paragraphs above), indicated three readings of 1.2 mmol/L which Dr Badaoui told the Tribunal, were incorrect. He said that he had realised on obtaining the result that it was incorrect and retested, finding the reader had been incorrectly programmed. Other readings on those pages showed Dr Badaoui's range of blood sugar ranged from hypoglycaemic to hyperglycaemic. At Exhibit A2, a series of pages headed 26 November 2002 were said to be a printout for 27 March 2003, and other dates in 2003. As a result, I could not be satisfied that these were accurate or of the rigour with which Dr Badaoui monitors and controls his blood sugar levels.

141. I accepted Dr Badaoui's evidence that he had not had a hypoglycaemic attack since 1982, when as a student, he drank to excess, fell asleep and awoke in hospital. He admitted, and indeed, records before the Tribunal at Exhibits A1 and A2, indicated Dr Badaoui has suffered hypoglycaemic episodes. The print-outs of blood glucose measurements indicated that his levels fall below the optimum from time to time, and that optimum is known to vary between individuals. The printouts showed that in several of those cases when Dr Badaoui's blood glucose levels fell below the optimum, the reading following that reading, indicated that he had taken prompt and effective corrective action. That was in line with Dr Badaoui's description of how he handles himself in relation to his diabetes, and how he manages his dental work. Dr Badaoui described himself as hypoglycaemically aware, and I noted that he reported sweating and tremors if his blood sugar falls below 2.8 mmol/L. That was not in dispute. However I accepted from the medical evidence, in particular that of Professor Eastman, Dr Wilkins and Dr Donaldson, that cognitive impairment can occur without the diabetic patient being aware.

142. I noted both the oral and written evidence given before the Tribunal by various eminent medical practitioners. Professors Eastman and Carter, both eminent endocrinologists gave concurrent evidence before the Tribunal, a process where the witnesses not only give their individual evidence, but discuss issues together. I found the evidence of Professors Eastman and Carter of great assistance.

143. I noted that Professor Carter who has been seeing Dr Badaoui for two years, expressed the view that Dr Badaoui was a highly motivated individual who demonstrated exceptional control as to his blood glucose levels, and noted that he had remarkably few complications in his vital areas. I accepted the evidence of both Professors Carter and Eastman who remarked from the print-outs of Dr Badaoui's blood glucose levels before the Tribunal (Exhibit A2) March to May 2003 that these indicated fluctuations in the blood glucose levels, from as low as 2.1 mmol/L at 7 am on 14 April 2003, to above 16.7 on another occasion.

144. Both Professors Carter and Eastman agreed also that flying was a managed time operation, as was Dr Badaoui's work in surgery, and noted that he could plan his medication and food intake accordingly. Professor Carter stated that: "He understands the monitoring and management procedures for diabetes and the actions that need to be undertaken should a low or hight blood glucose level occur." Dr Leaver who has worked with Dr Badaoui corroborated that evidence.

145. Professor Carter remarked in Dr Badaoui's favour that he was one of a cohort who exhibited the classical signs of the commencement of hypoglycaemia in that he commenced having tremors and sweating, and that the risk of Dr Badaoui suffering a hypoglycaemic attack which was undetected was "incredibly low". It was agreed however by Professors Carter and Eastman, and I accepted, that an undetected hypoglycaemic attack could occur with resultant loss of cognitive function, and other complications, particularly in the air, in bad weather or with engine trouble, a situation different from the surgery or driving a car where stopping by the side of the road was an option.

146. I was mindful of Mr McKeown's submissions on behalf of Dr Badaoui that he is not an average pilot, but one with a good understanding of the diabetic processes who, (due to his academic training as a dentist), can recognise subtle changes in his blood sugar levels.

147. In that regard I noted also the evidence of Professor Eastman who cited several major studies of insulin dependent persons and opined that there was always a possibility that notwithstanding being hypoglycaemically aware, Dr Badaoui could develop hypoglycaemia without such awareness, leading to cognitive dysfunction within a short space of time. He stated that in contrast to hyperglycaemia, even mild degrees of hypoglycaemia would cause cognitive dysfunction.

148. Professor Eastman also mentioned in his report, the one percent rule on which he said much store was placed in quantifying the risk of incapacitation. He stated that the one percent rule was a useful objective standard against which to assess the medical fitness of professional pilots, adding that given the frequency of hypoglycaemic attacks in insulin treated diabetics, the rule was not applicable. Professor Eastman referred to "Johnston, in the highly respected aviation medicine textbook (Aviation Medicine: Ersting Nicholson and Rainford pp 303 -312), states that the lowest annual prevalence of significant hypoglycaemic episodes is 9%, with an average of 20 to 30%."

149. Dr Wilkins' opinion was that, given his insulin dependent diabetes, and the results of tests presented, Dr Badaoui posed a risk to aviation safety. The risk, Dr Wilkins said, was of hypoglycaemia, which notwithstanding Dr Badaoui's usual hypoglycaemic awareness, could nevertheless occur. This was dependent, he indicated, on various factors including work load. This view was corroborated by the evidence of Dr Donaldson.

150. I noted that Dr Johnston, at paragraph 21 of his statement at T31/154 stated as follows in regard to Dr Badaoui's control of his blood sugar levels:

"21. Reviewing Dr Badaoui's case, noting his good control and his blood sugar estimations, combined with his lack of complications, would suggest that his likelihood of hypoglycaemia is low but, however, there is a degree of unpredictability of these episodes. He does, however, have adequate hypoglycaemic awareness and would appear to be well educated in his diabetic management. In Europe, if the incapacitation event rate associated with a medical condition is 1% per annum or less, this is compatible with restricted class 1 certification and unrestricted class 2 certification. The prevalence of hypoglycaemia in type 1 diabetes does not meet this level.

22. Reviewing the data in the file, I feel that a class 2 certificate with a safety pilot endorsement in the first instance would be a reasonable clinical judgement."

151. However after having reviewed the data recording Dr Badaoui's blood sugar levels at Exhibits A1 and A2, Dr Johnston revised his view of Dr Badaoui's control of his blood sugar levels on the basis of the fluctuations recorded in those documents. I noted his further report of 29 May 2002 (Exhibit R3) in which he noted that Dr Badaoui's blood sugar levels recorded at T40/232 -240 of the T-documents indicated:

"... numerous episodes of hyperglycaemia with levels which are unacceptable for good quality control e.g. 15.9 mmol/L, 14.6 mmol/L and 14.3 mmol/L. There are in addition, episodes of hypoglycaemia of between 2.7 and 2.9 mmol/L..

I have also reviewed the blood sugars contained in the subsequent documentation, pages 1-12 covering the period 10.06.2002 to 24.11.2002, and these again show episodes of hyperglycaemia, including a level of 20.7 mmol/L. There are episodes of hypoglycaemia and they have been documented at a level of 2.3 mmol/L."

152. I was mindful that of the basis of the above readings, Dr Johnston stated that Dr Badaoui could pass the FAA Protocol, but revised his opinion to recommend that it would be reasonable for Dr Badaoui to fly with another pilot.

153. Mr Harvey's submissions on behalf of the Respondent were that the test results of blood glucose levels submitted by Dr Badaoui indicated that he was susceptible to hypoglycaemic events, and the effects of those in the air were considerably different from the situation in the surgery where Dr Badaoui had the comfort of knowing his wife could assist in the case of a problem.

154. Notwithstanding the arguments that Dr Badaoui is hypoglycaemically aware, I preferred the views of Drs Wilkins, Donaldson and Johnston which are discussed above, and which authoritatively pose the possibility of hypogycaemic episodes occurirng without Dr Badaoui realising.

155. I was satisfied from the medical evidence and printouts which Dr Badaoui produced for the Tribunal, that notwithstanding his hypoglycaemic awareness, he is regularly at risk of hypoglycaemia. The evidence before me indicated that Dr Badaoui could redress that in a normal situation, but that a hypoglycaemic episode could occur during which Dr Badaoui became cognitively impaired without warning. Further complications impacting upon the ability of Dr Badaoui to concern himself with impending hypoglycaemia were likely if engine problems occurred or weather complications suddenly developed.

156. I was satisfied to the requisite standard from the evidence, that hypoglycaemia is a far more serious matter in the air without a co-pilot, than in a surgery where help is at hand immediately, or in a car which can quickly be parked on the side of the road. In the air there was far more unpredictable situations in regard to weather, the engine, and controls, as well as the situation Dr Badaoui experienced in which he dropped his glucometer. The effects of hypoglycaemia and loss of cognitive function are potentially fatal to Dr Badaoui and others, and pose a risk to aviation safety. I could not be satisfied that issuing of a special medical certificate to Dr Badaoui to fly solo would not adversely affect the safety of air navigation.

157. However, one of the main arguments raised by the Applicant during the Hearing, was the application of the FAA Protocol, which Dr Badaoui had undertaken in two supervised test flights. Accordingly I further explored this. The evidence before the Tribunal was that in 1998 Dr Badaoui, supervised by Dr Jambor, aviation medical examiner and pilot, and Dr Leaver, medical practitioner and pilot, undertook the FAA Protocol in a five hour flight. Dr Badaoui then repeated the exercise in a 3.2 hour flight with Dr Leaver and Dr Badaoui's flying instructor. I accepted that Dr Badaoui was able to fulfil the requirements adequately on those occasions as given in the evidence.

158. I noted further the evidence of Dr Johnston, who is a pilot and Head of Occupational Health of the Civil Aviation Authority in England, and a senior examiner for the FAA Protocol. Dr Johnston was unable to give much information about the success of the FAA Protocol, and informed the Tribunal that a preliminary report on it had been given at an aerospace conference in May 2003. I was mindful of his statement that in Europe there was no provision for insulin dependent diabetics to fly, and that some 190 counties, (including Australia), had not adopted the FAA Protocol. I noted also from the evidence before me that the FAA Protocol is not accepted without some concern in the USA.

159. I was mindful also of the situation which arises in application of the FAA Protocol, namely that the insulin dependent diabetic is maintained at a mild hyperglycaemic level. Dr van Gend's opinion about that at T16/49, was that he did not believe there was any danger of producing symptoms due to hyperglycaemia. He did not consider it would have any significant long-term effects on Dr Badaoui's health although I was mindful that Dr Wilkins was not as convinced.

160. In considering the FAA Protocol, Dr Wilkins opined that it may assist in reducing a hypoglycaemic or hyperglycaemia episode from occurring, but it could not exclude the possibility of such occurring. I accepted his explanation that the FAA Protocol had not been adopted in Australia because it was experimental and had not yet been demonstrated to be safe. I noted also his view that the Protocol had the adverse result of "(a) increasing the risk of cognitive impairment from hypoglycaemia which is resultant from intensive insulin therapy and strict diabetic control and (b) creating a distraction from the primary function of the pilot, which is to control the aircraft."

161. I was mindful of the evidence of Dr Donaldson, who is a pilot and aviation medicine consultant, who stated that he had spent his professional career concerned for the safety of pilots and their passengers. His evidence included mentioning of the theory of Professor James Reason of seeding organizational pathogens into a system. He likened the licensing for solo flying of an insulin dependent diabetic pilot as CASA seeding the system with an organizational pathogen which at some time would penetrate the defence systems and combined with an active failure, lead to an accident. I noted that Dr Donaldson was clearly not convinced of the desirability of issuing a special medical certificate to Dr Badaoui on the basis of meeting the tests in the FAA Protocol.

162. Mr Harvey's submission regarding the FAA Protocol was a recognition that Dr Badaoui had undertaken it, submitting however that his achieving it was not a scientific analysis, and that accordingly, the Respondent could not have the confidence that on the basis of this test result, aviation safety would not be compromised. He submitted that the tests undertaken were at best confined to controlled flying, and the particular situation in which Mr Campbell, rather than Dr Badaoui, had had the command and ultimate responsibility.

163. I was mindful also that the FAA Protocol has not been accepted for use in Australia, (neither in some other 190 countries), and the role of Ministerial policy in the decision making processes of this Tribunal. As to any argument regarding Ministerial policy; this has been canvassed many times, and there is no doubt that the Tribunal is bound to apply Ministerial policy unless there is good reason not to do so. I considered the words of Brennan J in Re Drake (supra), and the expressed the reasons for adopting guiding policies, and the need for the policy to be consistent with the statute at 640 and 641:

"There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. ...

Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute ... .

... There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power."

164. Mr McKeown pressed upon me that where policy resulted in unfairness such as the refusal to apply the FAA Protocol, then it should not be followed. I was not convinced by his argument and preferred to follow the route of considering myself bound by Ministerial policy, unless there was good reason to depart from it.

165. I could not find such reason in this case, because I have found from the medical evidence discussed above, and the records of Dr Badaoui's glucose level printouts, that Dr Badaoui's blood glucose levels show he becomes hypoglycaemic from time to time. The risk is hard to measure. Despite several witnesses who favoured the Applicant's case, I had ultimately to be guided by the overarching consideration of aviation safety. As has been apparent from the evidence presented to the Tribunal, the assessment of risk in this situation has neither been an easy nor precise matter.

166. However I was satisfied from all the evidence before me that to give permission for Dr Badaoui, who is an insulin dependent pilot to fly solo, would compromise aviation safety. Accordingly the application is refused.

167. I note by way of completeness that the issue of hypoxia was raised, and that it was not relevant in this case as Beechcraft Bonanza and other similar aircraft which Dr Badaoui may fly are not flown at higher than 10,000 feet. I noted further from the medical evidence of Dr Johnston that insulin dependent diabetics are not more at risk of hypoxia than other persons.

168. In conclusion, having considered all the evidence including the medical evidence, submissions, legislation and case law, and the Ministerial policy which binds me in this case, I concluded that the Applicant should not be granted a special medical certificate in accordance with regulation 6.10 and 6.12 of the Regulations, because I was satisfied to the requisite standard that the issuance of a special medical certificate would adversely affect the safety of air navigation. Dr Badaoui is susceptible to unpredictable episodes of disabling hypoglycaemia. Accordingly, pursuant to Regulation 6.10 of the Regulations, I refuse to issue a special medical certificate to Dr Badaoui to fly without a co-pilot. Accordingly his application must fail and the decision of the Respondent of 10 October 2002, be affirmed.

DECISION

169. The decision under review is affirmed.

I certify that the 160 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member

Signed: L Bonouvrie

Associate

Date/s of Hearing 2, 3, 4, 5 June 2003

Date of Decision 21 October 2003

Counsel for the Applicant Mr C McKeown

Solicitor for the Applicant McCourts as agent for Burridge Harris & Flynn Solicitors & Barristers

Counsel for the Respondent Mr I Harvey

Solicitor for the Respondent Mr A Anastasi, CASA