Primary Legislation: Civil Aviation Act s27B(2)
Secondary Legislation: CAR Part 67.59 - 67.61
Form: Not applicable
Conducted by: The Medical Examiner with delegation to issue certificates

Flexibility pathway provided for in the Act

If, having regard to any relevant General Direction(s), the Medical Examiner (ME) determines that an applicant fails to meet the standards prescribed in CAR Part 67, consideration can be given to the exercise of statutory flexibility as provided for by s27B(2) and (3) of the Act.

The ME should carefully consider the rules, the relevant GDs and any guidance given in Part 3 of this manual, to determine if the applicant meets the standard. This is to avoid assessing someone as meeting the standards when this is not the case, or conversely following the flexibility pathway and seeking an Accredited Medical Conclusion (AMC) unnecessarily.

Example 1

A Class 1 certificate applicant has well controlled hypertension and the cardiovascular risk assessment is acceptable according to the GD Examination Procedures. The applicant does meet the standard according to CAR 67.103(d), unless another section of the rules or GDs dictates otherwise.

Example 2

A Class 2 applicant has diabetes treated with Metformin. The condition is well controlled and the CV risk is acceptable according to the Examination Procedures GD. In that case, according to CAR 67.105(f) the applicant meets the standard with 'on-going medical supervision and control', unless another section of the rules or GD dictates otherwise. The applicant can be issued a medical certificate with conditions of surveillance. However if the applicant was using a Sulphonylurea he may not meet the standard according to CAR 67.105(f)(3)(ii), because of the risk of hypoglycaemia. This applicant would have to be assessed via the flexibility pathway.

Example 3

A Class 3 applicant has amblyopia with a visual acuity in one eye of 6/18. He has been certificated with this impairment for many years and the situation is stable. However he does not meet the standard prescribed in CAR 67.107(m)(3). Thus this applicant can only be certificated via the flexibility pathway. Identification of experts must be sought in order to obtain an Accredited Medical Conclusion (AMC). In this case the ME is likely to be identified as expert (see 2.9 Accredited Medical Conclusion for process).

If the ME conducting the assessment considers that flexibility should not be exercised, the alternative is to determine that the applicant is 'ineligible' for the issue of a Medical Certificate. In doubt the ME is welcome to consult the CAA Medical Officers.

Conditions to be met under the flexibility pathway

The exercise of flexibility, described in s27B(3) of the Act, requires fulfilment of the following three conditions:

  • An Accredited Medical Conclusion (AMC) indicates that in special circumstances the applicant's failure to meet any medical standard prescribed in the rules is such that the exercise of the privileges to which a medical certificate relates is not likely to jeopardise aviation safety (see Accredited medical conclusion for process); and
  • The relevant ability, skill, and experiences of the applicant and operational conditions have been given due consideration; and
  • The medical certificate is endorsed with any restrictions, conditions, or endorsements when the safe performance of the applicant's duties is dependent on compliance with those restrictions, conditions, or endorsements.

When an ME assesses that an applicant does not meet the standards but wishes to apply flexibility, the ME should document this step on the MAR by specifying that the applicant is not eligible for a certificate under section 27B(1) and that the ME is considering issuing a certificate under flexibility. The box 'deferred' or 'ineligible' may be circled with the comment that this applies to s27B(1). This is important in order to clarify the legal process that is being followed. Circling 'ineligible' without comment could be confused with ineligible without flexibility being pursued. For this reason circling the box 'deferred' is preferable.

Example 1

Applicant fails to meet CAR Part 67 medical standards

Table - Applicant fails to meet CAR Part 67 medical standards

Alternatively if flexibility is not considered:

Table - Applicant fails to meet CAR Part 67 medical standards eg2

If the ME considers that the applicant does not meet the standards prescribed in CAR Part 67 but wishes to pursue the flexibility route, the applicant needs to be informed accordingly (refer to following chapter 2.9 - Accredited Medical Conclusion).

If the certificate is declined the applicant is to be informed in writing without delay of the ME’s decision. The applicant is also to be informed of the right to seek review of, or appeal against, the ME’s decision, refer to Review of Director’s decision by the Convener and to Review a medical decision.

Key points

  • The applicant is not eligible under s27B(1), i.e. does not meet the standard, but the ME wishes to apply flexibility under s27B(2) and (3); or
  • The applicant is not eligible under s27B(1) but the ME does assess the application of flexibility to be inappropriate and decline to issue a certificate;
  • The Medical Examiner is to ensure that the applicant is informed in writing of the process, the decision and their right of review and appeal.