NZALPA Counsel, Richard McCabe

In this article, Richard discusses the accredited medical conclusion process under the existing Civil Aviation Act and explains why NZALPA has concerns that need to be addressed in the current Civil Aviation Bill before Parliament.

If a pilot or air traffic controller fails a medical, he/she may seek an Accredited Medical Conclusion (AMC) under the Civil Aviation Act 1990 (the CA Act) to see whether the medical can be granted by applying “flexibility”.

The AMC is made up of one or more experts “acceptable to the Director”. The AMC reviews the information and reason(s) why the medical is declined to determine if a medical can be issued, using flexibility, and on the basis that issuing the medical will “not likely jeopardise aviation safety”. AMC expert(s) are not limited to medical experts. The AMC can consider “characteristic” matters as well as medical matters.

The AMC is different to the Convenor process and is sometimes used instead of the Convenor process due to the extensive time it takes for a Convenor panel to reach a conclusion, often in excess of
18 months.

In my experience, AMC experts “acceptable to the Director” are appointed by the Principal Medical Officer of the CAA Medical Unit (who may have been instrumental in the medical being declined in the first place) and inevitably includes a member of the Principal Medical Officer’s team.

In 2009, a PPL pilot sought to appeal an AMC in the District Court (Kile v Director of the Civil Aviation Authority). The Court determined it did not have the jurisdiction to consider the appeal because the CA Act did not specifically permit an appeal to an AMC (in contrast to a Convenor decision) and because an AMC is not a decision of the Director, but of the experts appointed by the Principal Medical Officer.

In 2018 and after a lengthy process, a member of NZALPA had his medical declined despite his AME asserting that if it was up to him, he was fit to fly. The pilot requested an AMC, which declined to issue the medical using flexibility due to a characteristic – there was no medical condition (physiological or psychiatric) diagnosed. NZALPA represented the pilot, seeking to appeal the AMC (Cross v Director of the Civil Aviation Authority). As submitted to the Court:

“The absurdity and arbitrariness of these outcomes ... is underlined when it is taken into account that in practice, the participating medical examiner may well be performing all four roles or functions in play ... namely examining/reporting medical examiner; decision-maker under s27B(1); appointed medical expert for the accredited medical conclusion; and medical certificate issuer if the applicant ultimately passes muster flight operations or any other experts that may be necessary.”

The Court was not convinced that an AMC was appealable, for reasons applied in Kile.

It is NZALPA’s view that an AMC should be appealable. Consequently, NZALPA is making submissions on the Civil Aviation Bill in an effort to make the AMC process a fair one.