Q2002/227 and Civil Aviation Safety Authority [2003] AATA 99 (4 February 2003)

Last Updated: 4 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 99

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/227

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Q2002/227

Applicant

And

CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal

Mr K L Beddoe, Senior Member Dr K P Kennedy, OBE, Member

Date 4 February 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...................(Sgd)....................

KL Beddoe

Senior Member

CATCHWORDS

AVIATION - licence - refusal to grant medical certificate - applicant suffering from psychotic condition - prophylactic medication controls condition - whether condition is likely to interfere with the safe exercise of privileges, or performance of duties, under pilot's licence

Civil Aviation Act 1988

Civil Aviation Regulations 1988

Re Window and Civil Aviation and Safety Authority (1999) 56 ALD 316

Nolan v Clifford (1904) 1 CLR 429

R v Wells (1980) 5 QSCR 181

Pitt, Son & Badgery Ltd v Municipal Council of Sydney (1907) 8 SR(NSW) 1

Ex parte Major (1908) 8 SR(NSW) 68

REASONS FOR DECISION

4 February 2003

Mr K L Beddoe, Senior Member Dr K P Kennedy, OBE, Member

1. The applicant has sought a review of a decision of the respondent refusing to grant him a Class 1 or Class 2 Medical Certificate under the provisions of regulation 6.06 of the Civil Aviation Regulations 1988 ("the Regulations"). Without such a certificate, the applicant cannot hold a pilot's licence.

2. This matter was heard by the Tribunal on 15 July, 17 October and 1 November 2002. At the hearing the applicant was represented by Mr P H Clough, solicitor. Mr E Ford of counsel represented the respondent. The Tribunal had before it the T-documents (lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975), as well as the following documentary exhibits:

§ Exhibit A: Statement of Results - Graduate Australian Medical School Admissions Test;

§ Exhibit B: Curriculum Vitae of Dr Grant;

§ Exhibit 1: List of Questions for Mr White;

§ Exhibit 2: Report by Dr White to Professor Donald dated 16 August 2001;

§ Exhibit 3: Report of Dr Lambeth dated 29 May 2002.

3. Following the conclusion of the hearing in this matter, the applicant requested that a confidentiality order be made, pursuant to s 35 of the Administrative Appeals Tribunal Act 1975, prohibiting the publication of this decision. By consent, an order was made by the Tribunal, on 30 January 2003, prohibiting the publication of the name of the applicant in these reasons, the decision and documents referring to the decision..

FACTUAL BACKGROUND

4. In June 1992, the applicant was diagnosed as suffering from schizo-affective disorder - depressive type and was admitted to the Toowong Private Clinic for twelve days. He was medicated and responded well to the treatment. He was discharged and underwent regular psychiatric consultations with Dr Prior until March 1993. He ceased taking medication for his condition in December 1992 (see report of Dr Prior dated 17 March 1993, T5 at p 16).

5. In August 1993, the applicant consulted a psychiatrist, Dr Astill, following the break up of a relationship. Dr Astill diagnosed the applicant as suffering from schizo-affective disorder with acute symptoms. He treated the applicant with Stelazine and continued to treat him for a number of months. During November and December 1993, Dr Astill reduced the doses of medication taken by the applicant, until, in April 1994, he ceased medication (see report of Dr Astill dated 19 August 1994, T12 at p 29).

6. In March 1996, the respondent issued a Class 2 Medical Certificate to the applicant. That certificate was renewed in August, for a period of twelve months. The applicant allowed his certificate and licence to lapse after that time, as he was travelling and living in London.

7. On 2 August 1994, Dr Hetherington prepared a report in relation to the applicant. Although Dr Hetherington is not a psychiatrist, he expressed the opinion that the applicant's recent behaviour seemed to have been "an adult stress reaction, rather than psychotic episode". He concluded that the applicant's prognosis was excellent and that his current mental and psych status was normal (see report of Dr Hetherington dated 2 August 1994, T11 at p 28).

8. In March 1998, the applicant consulted Dr James, psychiatrist, for the purpose of obtaining a medical report for the respondent in relation to his renewal application. Dr James reported the applicant as exhibiting some degree of difficulty with his thought processes. The applicant suggested that these difficulties had arisen as a result of social deprivation he had experienced whilst working in a geographically remote location. The doctor noted that the applicant had been taking steps to reintroduce himself into the community, resulting in a significant improvement in his animation, spontaneity and responsiveness in later consultations. However, the doctor wished to defer making any specific comment with respect to the applicant's mental fitness for the purposes of the Regulations (see report of Dr James dated 26 April 1998, T30 at p 62).

9. In 1999, the applicant consulted Dr White of the Queensland Centre for Schizophrenia Research. Dr White diagnosed the applicant as suffering from a psychotic disorder not otherwise specified. He noted that the applicant had previously been diagnosed as suffering from schizo-affective disorder, and did not have any great disagreement with the diagnosis, the different diagnosis being of nosological interest only (see report of Dr White dated 25 October 2000, T32 at p 65). The applicant was hospitalised at the New Farm Clinic for a couple of weeks whilst he became established on new anti-psychotic mediation (see report of Dr Grant dated 30 January 2002, T40 at pp 83-84). Dr White continued to treat the applicant with the anti-psychotic medication and opined that if the applicant remained on medication a relapse was extremely unlikely. The doctor was of the view that there was nothing in the applicant's clinical diagnosis or current use of medication that would interfere in his performance of complex tasks, such as being a pilot (see report of Dr White dated 25 October 2000, T32 at p 65; and report of Dr White dated 16 November 2001, T35 at p 76).

10. On 30 January 2002, Dr Grant prepared a report in relation to the applicant. He noted that the applicant experienced two episodes of mental illness in the past, and confirmed that the applicant is suffering from either a schizo-affective disorder or a psychotic disorder (not otherwise specified). Dr Grant opined that the applicant's prognosis, provided he remained on medication for the long term, was very good and that the applicant was likely to remain well indefinitely. However, he considered that there was a small risk of relapse, the level of risk not being easy to quantify (see report of Dr Grant dated 30 January 2002, T40 at pp 83-88).

11. On 29 May 2002, Dr Lambeth prepared a report in relation to the applicant. The doctor did not examine the applicant, but provided an advice to the respondent on the basis of relevant documents that were provided to him. Dr Lambeth noted that although an exact diagnosis of the applicant's condition had not been made, all psychiatrists who examined the applicant concluded that he suffers from a disorder in which psychosis is a prominent feature. Dr Lambeth opined that, because of his condition, the applicant was not fit to hold a pilot's licence (see Exhibit 3).

LEGISLATIVE FRAMEWORK

12. Under reg 6.06, the respondent has the power to issue, or refuse to issue, one or more Class 1, Class 2 or Class 3 Medical Certificates. It must issue a medical certificate if an applicant satisfies the provisions of the Regulations, in particular where they meet the relevant "medical standards" (reg 6.06(1)(e)). The relevant "medical standards" are set out in Schedule 1 to the Regulations. In relation to mental fitness, the Schedule 1 of the Regulations provide:

"2. A person must have no established medical history or clinical diagnosis of:

(a) a psychosis; or

(b) alcoholism; or

(c) drug dependence or the use of illicit drugs; or

(d) any personality disorder of a significant degree; or

(e) a mental abnormality or neurosis of a significant degree;

that is likely to interfere with the safe exercise of privileges, or performance of duties, under the licence that the person holds, or has applied for, as the case may be."

13. The applicant contends that, as his condition is being managed by medication, it is not likely to interfere with the safe exercise of privileges, or with the performance of his duties as a pilot. The respondent contends that, since the applicant suffers from a psychotic condition of which he could suffer a relapse, he does not meet the medical standard for the issue of a medical certificate under the Regulations.

EVIDENCE BEFORE THE TRIBUNAL

14. The Tribunal heard oral evidence from the applicant, his father, Dr Grant, Dr White and Dr Lambeth.

Evidence of the Applicant

15. The applicant informed the Tribunal that he had first obtained a private pilot's licence and then a commercial pilot's licence in 1991. In 1992, following the breakdown of a relationship, the applicant consulted a psychiatrist, Dr Prior. He stated that he was confused about whether he should continue his university studies and was feeling depressed and lonely. He stated that at the time he was unhappy about his situation in life and could not think of a way out of it. He felt apprehensive about being in Brisbane and was concerned about losing contact with his friends and his former girlfriend. He consulted the psychiatrist at the suggestion of his brother-in-law.

16. As a result of the consultations with his psychiatrist, the applicant's private and commercial pilot's licenses were cancelled.

17. In 1993, the applicant consulted another psychiatrist (Dr Astill) at the request of his father. He explained that he saw the psychiatrist as he was concerned again about the path he had chosen for his future. He had been having some conflict with his father regarding the continuation of his university course. He said that his father had been trying to persuade him to finish his studies when he knew that he did not want to. He felt that his father had unreasonable expectations of him. He was also frustrated by the fact that his pilot's licence had been cancelled and his life was not taking the direction he had hoped it would. He stated that he did not think that he needed to see a psychiatrist at the time, and did not know why he was prescribed medication at a relatively high level. He stated that he did not consider himself to have been paranoid at the time, only feeling angst towards life and the situation he was in.

18. The applicant remained on the medication from August 1993 until April 1994. He went back to his home after that time, and saw his local doctor on a fairly regular basis. On six or so occasions, the applicant discussed his feelings with the doctor, particularly his feelings concerning the breakdown of his former relationship. He stated that it took him a long time to get over the break up of this relationship.

19. The applicant stated that in March 1995 his licence was renewed, but he later allowed it to lapse, as he was living in London at the time. (The Tribunal notes that a licence was actually granted in March 1996 not 1995). The applicant explained that, two years later, he consulted another psychiatrist and has been refused a medical certificate, for the purposes of reg 6.06, since that time.

20. The applicant explained that he had consulted Dr James in 1998 as he was feeling very lonely and isolated after having travelled and worked in London and outback Australia. He had formed a relationship with a former university friend whilst he was travelling through London, but the relationship failed as the friend moved to Japan to teach. He said that he had developed an interest in world affairs and religion as a result of his travels. His brother-in-law had become concerned about him and suggested he see a doctor or psychiatrist. He stated that he saw Dr James in preference to Dr Astill or Dr Prior, as Dr James was in Townsville and, at the time, the applicant was living in the North Queensland area. Dr James prescribed Olanzapine.

21. The applicant stated that he left North Queensland in June or July 1998 and returned home. In 1999 he moved to Sydney as he had decided to enrol in an engineering course at a University in New South Wales. Whilst in Sydney he resided in a seminary. He remained in Sydney for three or four months before withdrawing from the course and moving back to Brisbane. Upon his return, the applicant experienced difficulties obtaining work and began to feel unsettled. He was comparing news events with the Bible and had become increasingly confused and anxious as a result. He decided to consult Dr White and was admitted to hospital for treatment.

22. The applicant stated that he has been seeing Dr White on a regular basis. He is still consulting Dr White on a monthly basis. Dr White has prescribed Olanzapine as a prophylactic treatment for the applicant's condition.

23. The applicant informed the Tribunal that during the time he was licensed, he accumulated over three hundred hours flying experience. He stated he has never come under the notice of aviation authorities and completed his duties as a pilot in an exemplary fashion. He explained to the Tribunal that he held a private pilot's licence, without an instrument rating. Even with a commercial pilot's licence, he would not automatically have an instrument rating. The applicant explained that without an instrument rating he would not be able to fly through a thunderstorm or other bad weather.

Evidence of the Applicant's Father

24. The applicant's father is a qualified pharmacist, holds a commercial pilot's licence and owns a single engine Piper Saratoga aircraft. He operates an air charter service for tourists.

25. Four years ago, the witness suffered a heart attack and underwent a quadruple bypass surgery. After having been grounded for six months, he was retested and his commercial pilot's licence was reinstated. As a condition of his licence grant, the witness must undergo six monthly health checks. However, in relation to his private pilot's licence, he is only required to have annual medical examinations.

26. The witness explained to the Tribunal that after his son had suffered his first episode of illness, following the break-up of a relationship, he encouraged him to see a psychiatrist. He stated that the applicant seemed to have "a mental sickness at that stage".. He expressed the opinion that the applicant has now returned to his normal self, and has been that way for four, possibly five, years.

27. The witness has flown with the applicant on a number of occasions. He has observed the applicant and considers him to be a competent and capable pilot. He would not be concerned flying with the applicant whilst he was taking a low dose of Olanzapine.

28. The witness has over 8000 hours flying experience. He explained to the Tribunal the likely effects flying a single engine plane into a thunderstorm would have. He stated that not even an experienced pilot would deliberately fly into a thunderstorm. He further opined that an experienced pilot would have difficulty dealing with the situations that may arise whilst flying through a thunderstorm.

29. The witness also explained to the Tribunal the procedures involved in a forced landing and steps to be taken in the event of engine failure. He agreed that flying an aircraft involves predicting or seeing a risk of danger developing and then using experience to manage the risk.

Evidence of Dr Grant

30. Dr Grant is a psychiatrist who examined the applicant. He stated that the applicant was suffering from a mild, recurrent psychotic disorder, in that his symptoms are mild and he responds quickly to medication. He stated that the applicant is currently symptom free and therefore able to make decisions and put plans into action. However, he agreed that, if the applicant was suffering from an active episode of illness, even though his disorder is rather mild, he would be unable to make decisions and would be unable to perform the duties of a pilot. The doctor opined that while the applicant's condition was in remission he would be able to perform the duties of a pilot. He stated that the applicant would remain in remission so long as he continued to take prophylactic medication for his condition, provided that medication was taken reliably, on an ongoing basis, and the applicant did not abuse any hallucinogenic drugs or marijuana. (The Tribunal notes that there is no evidence to suggest that the applicant has a drug dependency or that he uses illegal drugs).

31. Dr Grant considered that the dosage of Olanzapine that the applicant was currently receiving was so low that any side-effects that may be associated with the drug would be negligible in his case. He noted that the applicant was receiving the lowest practical dose of the drug for the maintenance of his condition. The doctor considered that the applicant would not experience any difficulty carrying out cognitive tasks or thinking clearly whilst he was taking the prescribed dosage of Olanzapine. Although, Dr Grant stated in cross-examination that if the applicant took over-the-counter medication which had a sedative effect, that drug may combine with the Olanzapine and produce a greater sedation than would otherwise be expected.

32. The doctor opined that the risk of the applicant experiencing a relapse of his condition whilst taking his medication was very low. However, he suggested that a person with psychosis who is being maintained with medication should be reviewed from time to time to pick up on any early signs of relapse.

33. Dr Grant was questioned about the likely effect of stress on a person who has suffered from psychosis. He expressed the view that a propensity to psychosis does not necessarily affect a person's ability to handle stress, from moment to moment or in an acute situation, there being no evidence to suggest that a person whose psychosis is in remission is any different from an average person. However, the doctor conceded that a period of severe stress, rather than acute stress, might cause a relapse in a person suffering from psychosis.

34. Dr Grant conceded that it was possible, if the applicant was suffering ongoing stress in his personal life, causing his condition to begin to relapse, leaving him highly stressed when he entered a plane, that the applicant would not be as capable as an average person in that situation.

Evidence of Dr White

35. Dr White is the applicant's treating psychiatrist. He examined the applicant in 1999 when he was experiencing a psychotic episode, for which he was hospitalised. Dr White stated that the applicant was suffering from a mild psychosis. When he was hospitalised in 1999, the applicant was experiencing persecutory ideas, which, in a technical sense, meant that he was suffering to some degree from delusions. Apart from those delusions, Dr White has not seen the applicant suffering from delusions, auditory hallucinations, or seen him exhibit any other catatonic behaviour.

36. In his evidence, Dr White informed the Tribunal that he did not consider that the applicant's first episode of illness, for which he was treated by Dr Prior, was a psychotic episode. He opined that the episode seemed more like a depressive illness than a psychotic illness.

37. Dr White stated that he had seen the applicant manifest correct judgments in complex situations, so he did not believe that his psychosis would affect his ability to make judgments as a pilot. Dr White stated that he has been seeing the applicant on a regular basis and has not seen any psychotic symptoms in the applicant for over twelve months.

38. Dr White explained that he disagreed with Dr Lambeth's diagnosis of schizophrenia with a poor prognosis. Dr White did not consider that the applicant was suffering from schizophrenia, but if he was, Dr White was of the view that that did not mean that his prognosis was poor. Dr White opined that, since Dr Lambeth has not examined the applicant himself, he would not be able to give a definitive diagnosis or prognosis of the applicant's condition. Dr White stated that it was not unusual for different psychiatrists to give different diagnoses for a patient. Under cross-examination, Dr White conceded that Dr Lambeth's report did not state a diagnosis of schizophrenia for the applicant, it only stating that the applicant suffered from an illness with psychotic features.

39. Dr White stated that he would not be concerned travelling in an aeroplane piloted by the applicant. He stated that he would even fly with the applicant if he was unwell, if the applicant wanted to fly. He was of the opinion that the applicant would not want to fly if he was suffering badly from a psychotic episode.

40. Dr White explained that when he first saw the applicant in 1999 he had been suffering from psychosis. He had been particularly fearful and was concerned about messages relating to the end of the world contained in the newspaper and in books. He had believed that these messages were forming associations with various numbers he had seen in the city. The doctor admitted the applicant to the New Farm Private Clinic for two or more weeks. He explained that he admitted the applicant as he was concerned that he had no place of abode and thought it would be an appropriate way to help him at that time.

41. Dr White stated that the applicant's condition, since he first saw him, has fluctuated. There have been times when he has had to increase the applicant's medication in response to these changes. He stated that such changes are not uncommon and that they usual occur in response to situational crises and stress. He thought that, at the time of the applicant's discharge from hospital, he would have been prescribed a 10 milligram dose of Olanzapine, for eight to ten weeks, before it was slowly reduced to his current dosage of 2.5 milligrams. As necessary, the doctor increases the applicant's medication to 5 milligrams and then reduces the dosage back to 2.5 milligrams.

42. Dr White stated that, in general terms, people with psychotic disorders are more likely to relapse at times of great stress. Dr White agreed that it was possible for a person who was not suffering a full relapse of psychosis to exhibit some signs of the illness on a temporary basis. Dr White also agreed, under cross-examination, that a person with an underlying psychosis, even if it is in remission, would be at risk of being unable to handle stressful situations. He was asked to assume the situation of a pilot, who was under stress in his personal life, who was expected to deal with a very stressful situation involving bad weather. The doctor agreed that a person with an underlying psychosis could, conceivably, make a wrong decision under such pressure. The doctor further agreed that if the applicant was in that situation there was a real risk that he would not be able to cope.

43. Counsel for the respondent tendered as an exhibit a document prepared by the applicant's legal representatives, which had been given to Dr White prior to him giving evidence in these proceedings. The document lists questions to be asked of Dr White during his evidence in chief and gave "suggested" answers (see Exhibit 1). Dr White stated that he had not read the document. He stated that the applicant's solicitor had not told him how to answer the questions, but rather had told him of the kinds of questions he could expect to be asked. Dr White stated that he did not have regard to the suggested answers as he did not consider that it was for lawyers to tell him how to do his job.

44. Dr White explained to the Tribunal that prior to the hearing he had discussed with the applicant the stress he would be feeling at the hearing of this matter. The doctor stated that the applicant had expressed concern about his ability to deal with the stress of the hearing and being able to represent himself well and articulate his thoughts clearly. Dr White advised the applicant against any increase in medication, as he prefers to wait for symptoms to arise rather than medicate unnecessarily. The doctor did not agree that the applicant's obvious nervousness and hesitation in the witness box whilst giving evidence in these proceedings could be early signs of thought disorder and a recurrence of the applicant's psychosis.

Evidence of Dr Lambeth

45. Dr Lambeth prepared a report for the Tribunal in relation to this matter dated 29 May 2002 (Exhibit 3). Dr Lambeth did not examine the applicant for the purposes of his report, instead he based his report on material provided to him by the respondent. In his report, Dr Lambeth states (at pp 5-6):

"There is some doubt as to the specific diagnosis, with diagnoses of Psychotic Disorder - Not Otherwise Specified, being made, and Schizo Affective Disorder, being made, as well as a diagnosis of Schizophreniform Illness. ...

Prominent psychiatrists have made these diagnoses in this man. We can, therefore conclude that, despite the fact that an exact singular positive diagnosis has not been made, prominent psychiatrists have concluded that [the applicant] suffers from a disorder in which psychosis is a prominent feature, and have treated [the applicant] with anti psychotic drugs, as well as hospitalisation on at least one occasion.

On the basis of this alone, I believe that [the applicant] should not hold a pilot's licence of any class. I believe that the presence of psychosis on a number of occasions between 1992 and 1999 indicates that there is, in fact, a clinical diagnosis of Psychosis, which, in turn, is likely to interfere with the safe exercises of privileges, or performance of duties under the licence held by that person. ..."

46. Dr Lambeth also expressed concern in his report regarding the sedating effect Olanzapine may have on the applicant. He opined that the risk of somnolence would present an unacceptable risk in relation to the operation of an aircraft.

47. Dr Lambeth gave oral evidence before the Tribunal. Dr Lambeth advised the Tribunal that, in addition to being a qualified psychiatrist, he is a qualified pilot and is fully aware of the tasks involved in operating an aircraft. He considers the operation of an aircraft to be complicated. It requires a high level of concentration and can be extraordinarily stressful. Dr Lambeth discussed the dangers caused by wind and storms when flying, but disagreed with the applicant's father's evidence that pilots avoid flying into storms. Dr Lambeth stated that although it is best to avoid storms, when flying for commercial reasons it is not always possible to do so. He also gave the example of the Royal Flying Doctors Service, which, on occasion, may be required to fly into a storm to provide medical assistance to an injured person. Although, under cross-examination, Dr Lambeth agreed that micro-burst of wind and thunderstorms are events that can be predicted and which a trained pilot would endeavour to avoid.

48. Dr Lambeth observed the applicant giving evidence in these proceedings. He stated that the applicant appeared to be under a great deal of stress when giving his evidence and was very anxious. He stated that the applicant presented as someone who was woolly and vague with a poor memory. Whilst the doctor stated that the applicant did not exhibit severe thought disorder whilst giving evidence, he was of the opinion that the applicant's vague and woolly thinking was indicative of some form of mild thought disorder. He opined that he would have expected a person with the applicant's education and social background to have handled cross-examination better than the applicant had.

49. Dr Lambeth stated that the applicant's behaviour whilst giving evidence could be indicative of a mild psychotic symptom. He stated that anxiety can be indicative of a mild psychosis and that people suffering from schizophrenia or schizophrenic-type illnesses can become extremely anxious and that this can be seen as a prelude to a decompensation into a psychotic episode.

50. Dr Lambeth stated that stress can trigger a relapse of psychosis. He indicated that psychiatrists will adapt the dosage of medication given to a patient in order to relieve stress and anxiety and therefore prevent a relapse.

51. Dr Lambeth discussed the side-affects of Olanzapine. He stated that common side effects include somnolence leading to some degree of psycho-motor slowness, constipation, weight gain, hypotension and dizziness. He indicated that gastro-intestinal problems may affect the absorption of the drug into a person's system. Dr Lambeth was of the view that, if the applicant was not flying, he would be able to miss a day of his medication without a problem. However, Dr Lambeth stated that if the applicant was flying he would be worried if the applicant failed to take his medication. He stated that the medication provides a protective barrier against the stresses the applicant may encounter in the air. If the applicant failed to take his medication he would be more liable to react badly to stress. Dr Lambeth opined that, even if the applicant continued taking his medication, he would always have an underlying vulnerability and it would be more probable than not that the applicant would be unable to cope in a highly stressful situation such as flying a plane.

52. In cross-examination, the representative for the applicant suggested to Dr Lambeth that the cause underlying the applicant's consultation of Doctors Prior, Hetherington and Astill was the same - the break up of his relationship. Dr Lambeth agreed that it was possible that the cause may have been the same in those situations, but stated that the consultations of Doctors Prior and Astill represented two separate episodes of illness. The applicant had consulted Dr Prior in 1992 and was treated with Stelazine. He ceased taking the medication and appears to have been well for a period of time. In 1994, he consulted Dr Astill and was unwell again, requiring further medication. Dr Lambeth opined these were two episodes of illness.

53. Further in cross-examination, it was suggested to Dr Lambeth that he had failed to include positive comments made by other psychiatrists in relation to the applicant's condition when he prepared his own report. Dr Lambeth was taken through the comments and on each occasion he indicated that he did not include the particular comment in his report as he did not think it was relevant or it did not change the underlying diagnosis of psychosis. Dr Lambeth was not prepared to agree that the applicant's psychosis was mild. He pointed out that the applicant had twice been hospitalised and prescribed large doses of anti-psychotic medication, this being indicative of a serious condition.

SUBMISSIONS AND CONSIDERATION

54. At the conclusion of the hearing in this matter, the solicitor for the applicant submitted that the applicant is not suffering from psychosis, but in fact is suffering from a mild neurosis. However, this contention was not put to the medical witnesses. Most of the psychiatrists agreed with the contention that the applicant's condition was mild, but none resiled from their diagnosis of a psychotic illness. Accordingly, the Tribunal does not accept this contention and finds that there is no evidence to establish the applicant is suffering from an illness other than psychosis.

55. Further, the applicant contends that, on the basis of statutory interpretation principles, any psychosis suffered by the applicant must be significant in nature to attract the prohibition in reg 6.06. This argument is based on the requirement in Schedule 1 that any neurosis or mental abnormality must be of a significant degree (see Schedule 1 General Medical Requirements Civil Aviation Regulations 1988). However, the Tribunal is not satisfied that the legislation requires a psychosis to be significant in nature. The wording of the schedule is very clear and reflects the purpose of the legislation - that is, the need to protect the public by ensuring safe aviation practices and management. There is no ambiguity, therefore the words should be given their ordinary meaning in the context of the regulations (see Nolan v Clifford (1904) 1 CLR 429; R v Wells (1980) 5 QSCR 181; Pitt, Son & Badgery Ltd v Municipal Council of Sydney (1907) 8 SR(NSW) 1; and Ex parte Major (1908) 8 SR(NSW) 68).

56. The applicant further submits that, if it is accepted that the applicant has a psychotic disorder, that disorder is unlikely to interfere with his ability to safely exercise the privileges and perform the duties of a pilot. The applicant contends that he is not so psychotic as to be unable to reason or to follow procedures whilst flying, even if he was suffering an episode of illness. In the event that he did have a relapse, it was submitted, he would be able to fall back on his very rigid, disciplined and exact training, which would ensure he flew and landed safely.

57. An analogy was drawn between the applicant's situation and that of a pilot who had had heart surgery. It was contended that both the applicant and such a pilot would be on prophylactic medication for their conditions. It was argued that whilst the applicant continued to take medication he had a very low risk of relapse and therefore would be in the same position as a pilot with a heart condition when it came to his ability to fly. The applicant contends that his condition would not interfere with his safe exercise of the privileges and duties of a pilot.

58. In conclusion, the applicant suggested that a conditional grant of a medical certificate could be made, requiring the applicant to submit to psychiatric monitoring for a period and to undergo regular medical checks. It was submitted that such a conditional grant would allow for the management of any possible risk the applicant's psychosis could present.

59. The respondent submitted that the applicant is suffering from a psychosis which would be likely to interfere with the safe exercise of the privileges and performance of duties under a pilot's licence. The respondent contends that "likely" in item 2 of the Schedule means a real or substantial chance. All that is required is that there be a real risk that the applicant's condition could interfere with his performance of his duties as a pilot. The respondent contends that the medical evidence before the Tribunal establishes that there is a real chance that the applicant may have a relapse of his condition and, therefore, there is a real risk that the applicant's condition would interfere with his safe exercise of the privileges and duties of a pilot.

60. In Re Window and Civil Aviation Safety Authority (1999) 56 ALD 316, the Tribunal (Deputy President Forgie, Mr Horrigan, Member, and Dr Lawrence, Member) considered the meaning of the word "likely" in item 2, Schedule 1of the Regulations. The Tribunal held that (at par 60):

"Having regard to the need to protect public safety while having regard to a person's entitlement to pursue his or her ambitions, we consider that the word `likely' means `a substantial or real and not remote chance'. That is not a matter which can be assessed on statistical information and certainly does not mean `more likely than not', `odds on' or `a more than 50% chance of a thing happening'. To adopt those latter three meanings would, in our view, be to place too little weight on the protection of public safety and too much on an individual's entitlements."

61. The Tribunal adopts this approach in relation to the meaning of "likely" in item 2. The Tribunal accepts that there must be a substantial or real, and not remote, chance that the applicant's condition is likely to interfere with his ability to operate an aircraft.

62. On the basis of the evidence before it, the Tribunal finds that a person suffering from the symptoms of psychosis would be unable to safely operate an aircraft. The Tribunal finds that the applicant is suffering from a mild psychosis, that he is currently asymptomatic, and that his condition is presently being controlled with prophylactic medication. The real issue in this case is whether the applicant's condition, which is currently in remission, is likely to interfere with his ability to safely exercise the privileges and duties of a pilot.

63. The respondent contends that, in determining whether it is likely that the applicant's condition will interfere with his ability to operate an aircraft, it is important to look at his past clinical history.

64. The following table sets out a brief history of the applicant's psychotic condition:

Date	Event	Treatment	Treating Doctor
1992	Applicant diagnosed as suffering from achizo affective disorder - depressed type. He presented with persecutory thoughts and there was some evidence of mild looseness of association, with his thought form being somewhat "woolly".. Admitted to hospital and responded well to treatment. Medication continued for a period after release, and ceased in December.	Hospitalisation Prescribed Stelazine	Dr Prior
1994	Applicant diagnosed as suffering from schizo affective disorder, precipitated by the break-up of a relationship, with the illness being characterised by some depression of mood, paranoid ideation, some perplexity, increased anxiety levels, a preoccupation with the break-up of the relationship, and poor concentration levels. The applicant was treated with medication. Medication was slowly reduced until ceased in March/ April 1994.	Stelazine	Dr Astill
1998	Applicant consults Professor James - he was exhibiting some degree of difficulty with thought processes. Professor James delays comment on the issue of fitness to fly until the latter part of the year.	Not prescribed any medication	Professor James
1999	Applicant diagnosed as suffering from psychotic disorder - not otherwise specified. He had ill defined persecutory beliefs. Hospitalised and prescribed Olanzapine. Dose gradually reduced until reached present dosage of 2.5mg daily.	Hospitalisation Olanzapine	Dr White

65. It is clear from the above summary that the applicant has suffered four episodes of psychotic illness. Since 1999, he has been taking a prophylactic dosage of Olanzapine, an anti-psychotic mediation, of 2.5 milligrams a day. This medication has kept him well and, to date, prevented any relapses.

66. The medical evidence before the Tribunal raises the following relevant facts:

§ The applicant has had recurrent episodes of psychotic illness;

§ His illness, although mild, has led to him being hospitalised twice;

§ Whilst unwell, the applicant has been prescribed large doses of anti-psychotic medication, to which he has responded quickly;

§ Psychotic episodes can be brought about by stressful situations;

§ Where a person with a psychosis is under a great deal of stress there is a real chance that they will suffer a relapse; and

§ There is still a real and not fanciful chance that, even whilst taking prophylactic medication, a person with a psychosis will suffer a relapse if they are under a great deal of pressure and stress.

67. The Tribunal accepts that the duties of a pilot are highly stressful. The Tribunal is satisfied that the applicant, despite taking prophylactic medication, is suffering from a psychosis which is likely to interfere with his ability to safely exercise the privileges and duties of a pilot.

68. The Tribunal rejects the contention that the applicant's situation is no different from a person who is taking prophylactic medication following a heart attack. The Tribunal notes that the effects of a psychotic episode on a pilot during the operation of an aircraft would be significant. The symptoms of psychosis include a departure from reality and hallucinations. The applicant in this case has, whilst unwell, undergone a departure from reality. A psychotic episode can also be brought about by stress, and therefore could occur whilst the pilot is operating an aircraft. In any event, the legislation specifically states that a person suffering from a psychotic condition which is likely to interfere with the safe exercise of privileges or performance of duties as a pilot should not be granted a medical certificate, therefore prohibiting the grant of a pilot's licence to the person. It is not for this Tribunal to comment on whether the same requirements should be placed upon pilots with heart conditions.

CONCLUSION

69. For the reasons given above, the Tribunal will affirm the decision under review.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member and Dr K P Kennedy, Member

Signed: Sarah Oliver

Associate

Dates of Hearing 15 July, 17 October and 1 November 2002

Date of Decision 4 February 2003

For the Applicant Mr P H Clough, Solicitor

Counsel for the Respondent Ms E Ford

Solicitor for the Respondent Civil Aviation and Safety Authority