Pilot With Diabetes Type One Denied Procedural Fairness – Owens v Civil Aviation Industry [2010] FCA 1354

Ovens v Civil Aviation Authority [2010] FCA 1354.

The Plaintiff  Mr. Ovens was the 62 year old holder of a private pilot’s licence, who since 1981 had a  Class 2 medical certificate, enabling him to fly an aircraft accompanied by a  safety pilot.

Ovens suffered  from insulin dependent Type 1 Diabetes Mellitus, diagnosed in 1960 when he was 12 years of age. He had managed his condition in recent years by using an  insulin pump to monitor his blood sugar levels.

Ovens decided to apply for a Class 2 medical certificate from the Civil Aviation Safety Authority (CASA) without any requirement for a safety pilot, as he wished to fly up to 300 hours a year for social and recreational purposes.

His request for the relevant certificate was refused by CASA on the grounds that he did not satisfy the  safety requirements under the Civil Aviation Act 1988 (Cth) and the Civil Aviation Safety Regulations 1998 (Cth).

The Authority was only prepared to issue the Plaintiff with a Class 2 medical certificate with a condition attached to it.  The condition attached would only permit him to fly an aircraft only if accompanied by a safety pilot.  The decision was based on his insulin dependant status.

The Plaintiff sought internal review of the decision through the  Administrative Appeals Tribunal (AAT).  (See Ovens and Civil Aviation Authority [2010] AATA 481 (20 June 2010)

His appeal before the AAT was rejected.  He therefore appealed to the Federal Court for administrative review of the decision under S44 of the Administrative Appeals Tribunal Act 1975 Cth.

The Plaintiff argued he was denied procedural fairness by the Tribunal in terms of the manner in which the Tribunal considered and applied CASA’s “Protocol for Type 1 Diabetic Pilot Applicants and it’s specific requirements, which were in turn based on  the similar (but not identical) US Federal Aviation America  (FAA)  Protocol.

The Published Protocol was not brought to the Plaintiff  or  Tribunal’s attention until the evidence of the last witness was given at the hearing, at which time it was tendered for the purpose of cross-examination

The Plaintiff didn’t challenge the admission of the Protocol into evidence, rather he contended he was denied procedural fairness in the sense that the Protocol was applied to him without  being afforded the opportunity to   try to bring himself within it’s provisions.

Three endocrinologists  who had given  testimony annexed the Published Protocol, although one had consulted the FAA guidelines which did not accept a blood sugar level below 6.4 on the grounds that  “it would put a pilot at an unaccpetable risk of hypoglycaemia.”

The FAA protocol stated that it would not  accept Pilots with diabetes with documented  hypoglycaemia unawareness. One of the critical medical issues before the Tribunal was the Plaintiff’s level of autonomic neuropathy and  potential lack of hypoglycaemic awareness.

Under reg 67.195 of the relevant Regulations, when considering whether to issue a special certificate subject to any conditions,  the Authority must decide either that the applicant’s medical condition is not likely to reduce the person’s ability to pilot an aircraft, or that allowing the person to fly is not likely to endanger the safety of air navigation.  Pursuant reg 67.180(2)  an examination assessing the extent to which the person does not meet the medical standard in determining what is acceptable is legally necessary.

The Tribunal had determined that the risk of hypoglycaemia leading to cognitive unawareness was the most serious risk for a pilot with diabetes mellitus. The Tribunal had concluded that the Plaintiff’s  level of autonomic neuropathy could not simply be viewed in isolation, and must be considered in the context of his age, and the progressive nature of his symptoms, notwithstanding that they did not affect his ability to fly.

The Plaintiff requested the Tribunal’s decision be set aside.  He provided evidence to the Authority of his  capacity to monitor his blood sugar levels in during 15 dual pilot flights in conformance with the stated requirements of the Published Protocol.

He submitted that upon receipt of this evidence  he should be issued with a  12 month Class 2 medical certificate to fly solo,  as long as he complied with the  condition that he monitor his blood sugar level whilst undertaking flight duties.

The Draft Protocol provided that flights should not start within 90 minutes of the administration of insulin. As the plaintiff was on an insulin pump that requirement couldn’t be  fulfilled at the threshold.  The Published Protocol however contained a proviso to this requirement, namely, unless an insulin pump is used.

The Tribunal observed, however, that the Published Protocol cited as  autonomic neuropathy and retinopathy as an exclusionary criteria without specifying any extent or level of either condition.

One would have thought that in order to apply rigid criteria such as this, there has to be  a tight correlation  between the criteria employed and the target criteria,  in this scenario, namely a Pilot’s safety in flying a plane.

The presence or absence of an ailment in and of itself  shouldn’t be indicative of an applicant’s ability to perform the inherent requirements of a task under principles of discrimination law.

Such arbitrary standards are problematic and far too prevalent in assessing the criteria relating to an applicants’ fitness to perform occupational requirements or specific tasks.

The Plaintiff had requested the Tribunal to apply the FAA Protocol so that he could be brought within it’s provisions.  The  FAA Protocol did not specify that autonomic neuropathy was an absolute prohibition to solo flying for a pilot with diabetes mellitus.

The Tribunal had heard evidence of the Plaintiff being able to manage his insulin pump, of his awareness of impending hypoglycaemic episodes and  his ability to manage his condition on a lengthy flight in difficult flying conditions. The Tribunal was also in possession of evidence relating to his  proficiency in the use of his blood sugar recording device,  coupled with evidence that his conditions were not disabling.  The Plaintiff put forward evidence that the risk of his having an episode was  within the internationally tolerated 1% level.

The Plaintiff was not given the opportunity to participate in the cohort to trial the criteria contain within the Draft Protocol. Therefore, the  above evidence in the proceedings until the conclusion of the previous hearings.  The Plaintiff argued that his constituted a denial of natural justice, depriving  him of a fair hearing.

The Tribunal determined the Plaintiff was denied natural justice by deciding his application by reference to the Published Protocol in the circumstances summarised above.  However it did so without giving him the opportunity to see whether he could bring himself within the Protocol by proving he was able to complete a certain number of trial flights under supervision in a safe manner irrespective of his medical condition.  The applicant  simply wasn’t given any opportunity to complete the tests outlined within the Published Protocol.

The Tribunal should have given the Plaintiff the ability to adjourn the matter to enable him to be alerted to the Published Protocol and further given a reasonable opportunity to present his case.

It is not affording procedural fairness to the Plaintiff to introduce a completely different protocol to the FAA Protocol without giving him an adequate opportunity to respond.

The Court agreed that this deprived the Plaintiff of the opportunity to address the Published Protocol and adduce further evidence to support his argument that he could have undertaken a nerve conduction test proving he satisfied the prescribed entry criteria.

The Federal Court therefore decided that the Tribunal erred in law, and remitted the matter back to the AAT for a decision to be made according to the law.

DISCRIMINATION AND DIABETES

Discrimination associated with diabetes is often due to ignorance or lack of understanding as recent Australian cases have demonstrated.

In Vickers v The Ambulance Service of NSW, the defendant was found to be engaged in unlawful discrimination in assessing the ability of the Plaintiff to conduct his duties as an ambulance officers.

The question which arose was whether the Respondent had discriminated against a trainee ambulance officer under the s15 of the Disability Discrimination Act (1992) Cth, for refusing to employ him on the basis of his disability, type one diabetes. There were two aspects to his discrimination claim, the first being that the selection process constituted direct discrimination in breach of s15(1)(a) of the Act and secondly that the decision not to employ him because of his diabetes amounted to direct discrimination under s15(1)(b) of the Act.

In respect of the first claim there was some contention as to whether there was a blanket policy in place employed by the  Respondent excluding all persons with diabetes from employment.  The Applicant asked the Court to infer from the circumstances of the employment selection process that there was such a policy in existence in that once he disclosed his diabetes, he was essentially excluded from consideration, and the Respondent was unprepared to consider further medical evidence submitted by him.

The Judge accepted that the Respondent’s medical officer’s views did not indicate that there was any blanket policy in existence excluding persons which fell into the same category as Vickers, namely persons with type 1 diabetes.  The Court found that the Respondent’s Doctor had arrived at a different view than the Applicant’s medical expert and there was insufficient evidence to show that the respondent adhered to such a blanket policy. The Court also found that the Applicant wasn’t treated any less favourably than other applicants during the employment selection process.

Vickers was a type 1 diabetic requiring regular doses of insulin administered via injection.   Vickers argued that in having to undergo a medical assessment due to having the condition of  type 1 diabetes he was treated differently than other potential applicants.

Vickers failed the medical assessment once his diabetes was disclosed and he received a letter stating that he was unable to proceed to the next level of the application process due to this medical condition.

The Respondent argued that it did discriminate against the applicant on the basis of his disability under s4 of the Act, but relied on the defence contained in s15(4) of the Act, namely that his condition rendered him unfit to perform the inherent requirements of the duties of an ambulance officer.

The inherent requirements of the position of trainee ambulance officer were stated by the respondent to be the capacity to treat and transfer patients.

Relying upon expert medical testimony at trial, the Respondent submitted that no person with  Type 1 insulin-dependent diabetes would be fit to safely perform the duties of the position.

The Respondent argued that the Applicant’s condition of Insulin dependent diabetes rendered him medically and physically unfit to perform the duties and requirements necessary for the position of trainee ambulance officer.  There was extensive discussion regarding the effect of shiftwork and other factors inherent to the nature of the duties of an ambulance officer and the effect on his ability to control his diabetes.

The Applicant had been a registered nurse in a demanding position in theatre, engaging in shiftwork in his employment without any difficulty in discharging his employment duties.

He had also been an active member of the St John Ambulance Service and had performed more than twelve hundred public volunteer duty hours, many consisting of  all day sessions.  This had involved working in excess of 15 working hours without any loss of diabetic control.  The applicant submitted that in these previous roles he had never suffered  a hypoglycaemic event and had performed his duties to a satisfactory and professional level.

He had sought a review of the respondent’s initial decision to exclude him for consideration. Despite reviewing the evidence, the Respondent’s Doctor remained of the same opinion that his  condition would preclude him from discharging the duties of a trainee ambulance officer.

The Respondent argued that his competency as a nurse didn’t necessarily render him competent to perform the duties of an ambulance officer, and that in any event in his duties as a nurse he was unlikely to be responsible for the safety of a patient in difficult or hazardous surroundings as would  an ambulance officer. The Respondent argued that his condition could jeopardise his safety, the welfare of patients and colleagues.

The applicant had submitted evidence from an Endocrinologist to the effect that he was hypoglycaemia aware and  sensible about management of hypoglycaemia.  He argued he was an expert at managing his sugar levels to prevent hypoglycaemia by planning his carbohydrate and insulin intake to  successfully navigate the day ahead.

The Respondent argued that it did not find previous evidence of diabetic control persuasive as there was no certainty of him preventing a hypoglycaemic episode working in remote, isolated areas with an irregular shift pattern.

In the Federal Magistrates Court proceedings the applicant gave evidence stating he was hypoglycaemic aware, and was aware of  the signs associated with his blood glucose dropping such that he could take appropriate action to prevent this if necessary.  The Respondent argued that just because he was hypoglycaemic aware he still ran the risk of being diverted from   driving an ambulance or treating a patient. The Respondent also argued that if he failed to correct his glucose levels in sufficient time, the symptoms of an event would impair his ability to drive safely and might lead to a state of unconsciousness.

Based on the evidence, the Court rejected the defence raised by the Respondent under s15(4),  relying on the evidence of the Applicant’s Endocrinologist to the effect that he had demonstrated excellent management of his condition. The Court concluded that in the unlikely event that a hypoglycaemic event did occur in the course of his driving the ambulance, the applicant would be able to pull the ambulance over or stop treating a patient to consumer glucose and that the 30 to 60 second interval required to do this wold not prevent him  the 30 to 60 seconds required to either pull the ambulance over or stop treating a patient in order to consume glucose and that the 30 to 60 second interval wouldn’t prove critical to a patient’s wellbeing.

After reviewing the case law in the area of discrimination law in Australia, the Court remarked that an Employer cannot exclude an applicant simply because an employer cannot guarantee the welfare of the applicant or others. To adopt such a test would be to exceed the requirements of the test laid down in the case of X v Commonwealth.

That would be putting the threshold too high. In line with the approach set down by the High Court in X v Commonwealth (1999) 200 CLR 177.   The relevant test as established by the High Court, required that the court consider whether the risk posed by the applicant’s disability is unreasonably high in all the circumstances, necessitating a balancing exercise.

This balancing exercise entails assessing the individual characteristics of an applicant.

The case is a reminder to all applicants with diabetes that employers have a legal obligation to carefully assess any risk arising from an applicant’s disability, however must not too readily reject an application based on speculation about the mere possibility of a risk.

The applicant’s characteristics must be considered in the context of any inherent requirements of a position and an employer cannot exclude an applicant from consideration based on stereotypical or preconceived notions about limitations arising from a disability such as diabetes.

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