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Up in the air

The right of confidentiality is bound by the Privacy Act but, as doctors, you can disclose patient information in certain circumstances. One such area is aviation safety. Dr Dougal Watson explains your obligations

Many doctors have pilots and air traffic controllers as patients. Few doctors are aware that in certain circumstances they also have public safety obligations to advise the aviation safety regulator – the Civil Aviation Authority (CAA) – concerning their patients. Even fewer doctors understand that those public safety obligations – to advise the CAA – are very well protected and are not overridden by privacy obligations.

This article explains some of the obligations and protections that apply to medical practitioners who have pilots and air traffic controllers as patients. This article also explains how those public safety obligations override your obligations under the Privacy Act.

The risks

As a medical practitioner, you will be aware of the potential for medical conditions to degrade aviation safety. Clearly it would be inappropriate for an epileptic patient to be flying an airliner carrying dozens, or hundreds, of passengers. What is not always clear, is just where the medical safety line lies.

It would be inappropriate for an epileptic patient to be flying an airliner carrying dozens, or hundreds, of passengers. What is not always clear, is just where the medical safety line lies

Epilepsy is relatively straightforward, along with some serious mental health problems, but what about migraines? What about after a myocardial infarct, head injury, or malignant disease? What about any of the many medical conditions that you routinely see in your day-to-day practice? What about prescribed medications?

It would not be reasonable to expect every medical practitioner to also be expert in the field of aviation medicine, or to also understand the safety thresholds that are applied by the CAA. To allow for this, and to help maintain aviation safety, the civil aviation legislation (Civil Aviation Act 1990) includes requirements for medical practitioners to report certain cases to the CAA.

Those statutory requirements have a very low threshold for action, offer robust protection to the reporting medical practitioner, and ensure that it is the CAA’s aviation medicine experts that make any final decisions concerning aviation medical safety. Your obligations to report Section 27C(3) of the Civil Aviation Act describes the circumstances and, if those circumstances are met, places a reporting obligation upon medical practitioners.

There are three elements to the circumstances described: subject to General Directions issued by the Director of Civil Aviation; reasonable grounds to believe the patient is a pilot or air traffic controller; and reasonable grounds to suspect the patient has a medical condition that may interfere with aviation safety.

The first circumstance is very straightforward. The Director of Civil Aviation has not issued any General Directions that specifically relate to medical practitioners’ responsibilities under this legislation.

The second circumstance simply requires the medical practitioner to have reasonable grounds to believe that the patient is a pilot or air traffic controller. In most cases that information will have come to your awareness from the occupational or recreational aspects of the history you’ve taken. In some other cases you may have been told by family members or others. If you suspect your patient may be a pilot or air traffic controller, but are not satisfied you have “reasonable grounds to believe” then you can always contact the CAA to check.

The third circumstance is based on a “reasonable grounds to suspect” requirement, which is a relatively low burden of proof. This is entirely appropriate in a public safety situation where many people can be placed at risk from the actions of one person. As a medical practitioner, you do not need to be certain that your patient’s medical condition may interfere with aviation safety; you merely need to have reasonable grounds to suspect.

Similarly you are not required to believe that aviation safety will be adversely affected, but just that it may. What you must then do is also described in the legislation. Once the circumstances described above have been met, your responsibilities are relatively straightforward. You have an obligation to advise the CAA (the Director) and an obligation to inform the pilot/air traffic controller that the CAA will be advised.

You do not need to be certain that your patient’s medical condition may interfere with aviation safety; you merely need to have reasonable grounds to suspect

Informing your patient

How you do this will depend on the circumstances at the time. During a consultation this will usually take the form of verbal advice and an entry in the patient’s notes. At other times it may take the form of a brief letter to the patient.

The CAA website (www.caa.govt.nz) includes a pair of Medical Information Sheets (MISs) designed to assist medical practitioners in this area. MIS 2 describes your obligations. MIS 3 is intended to be a handout that you can give to your patients, and again describes your obligations along with theirs. If you are experiencing any difficulty, or if your patient is resisting your informing the CAA and you are not confident of your obligations, then you may wish to seek advice from MPS or from the CAA Medical Unit.

Advising the CAA

The legislation requires a timeline of “as soon as practicable” and the fastest way to advise the CAA is to telephone and talk with a CAA staff medical officer or medical adviser. If that is not convenient you can email, fax or write. Prompt advice is desirable and it would be inappropriate to delay advising the CAA of a safety relevant medical condition.

You should also make a note, in the patient’s records, of your having advised the CAA
In advising the CAA you should provide the name of the patient, their date of birth is often helpful to identify similarly named individuals, and a basic description of the medical condition that has triggered your concern. You do not need to provide great detail at that time. Once aware of the basic issue, the CAA has responsibilities and powers to obtain additional details as necessary. You should also make a note, in the patient’s records, of your having advised the CAA.
If you are not sure whether your patient’s medical condition warrants reporting, especially if you are not expert in aviation medical matters, then you should contact the CAA Medical Unit and discuss the condition with one of their medical staff.

Protection

The Civil Aviation Act also provides robust protection for medical practitioners who make reports to the CAA under s27C(3). A medical practitioner is “not subject to any civil or criminal liability” for a good faith report to the CAA that a pilot or air traffic controller may be unsafe.

The CAA is not aware of any medical practitioner having faced court proceedings, civil or criminal, as a result of complying with their obligations to report such medical matters to the CAA.

Privacy

Some medical practitioners are uncomfortable reporting a patient to another agency and sometimes (incorrectly) believe they are unable to do so because of privacy legislation. On some occasions the patient may try to dissuade the medical practitioner from advising the CAA.

Your public safety responsibility to advise the CAA overrides your obligations under the Privacy Act 1993. You must advise the CAA, even if your patient does not want you to.

Your public safety responsibility to advise the CAA overrides your obligations under the Privacy Act 1993

The reason that this obligation trumps your privacy obligations is contained in section 7 of the Privacy Act. The first provision of that section provides for another “enactment” (in this case the Civil Aviation Act) to not be derogated (overridden) by privacy principles 6 or 11. This means that your aviation safety obligations outweigh the privacy principles 6 and 11.

No medical practitioner has faced prosecution or privacy commissioner sanction as a result of complying with their obligations to report such medical matters to the CAA.

The pilot or air traffic controller must also report

The fact that the pilot or air traffic controller also has an obligation to report their medical situation to the CAA does not remove the obligation of a medical practitioner. You must still advise the CAA.

Failure to report

In the past some medical practitioners have felt, despite advice to the contrary, that the Privacy Act prevented them from advising the CAA concerning their patient. In those cases the CAA chose not to pursue prosecution of the medical practitioners but instead advised the Medical Council of New Zealand of the medical practitioner’s failure. Without exception the proper advice was provided soon after.

Pilots and air traffic controllers

These obligations apply to all air traffic controllers and many, but not all, pilots. The pilots who are covered by these requirements include:

  • All airline pilots
  • All other professional pilots
  • All private pilots
  • Some parachutists, hang-glider pilots, microlight pilots, home-built aircraft pilots, glider pilots, parapente pilots etc.

If you are unsure if your pilot patient is included in these groups then you can telephone the CAA Medical Unit to seek guidance.

Section 27C(3) of the Civil Aviation Act 1990

Subject to any directions that the Director may issue under section 27G(1)(b), if a medical practitioner has reasonable grounds to believe that a person is a licence holder and is aware, or has reasonable grounds to suspect, that the licence holder has a medical condition that may interfere with the safe exercise of the privileges to which the licence holder’s medical certificate relates, the medical practitioner must, as soon as practicable:

(a) inform the licence holder that the Director will be advised of the condition
(b) advise the Director of the condition.

Further information online

Contacting the Civil Aviation Authority

Dr Dougal Watson is Principal Medical Officer at the Central Medical Unit of the Civil Aviation Authority

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