| by Ruwantissa Abeyratne

( March 18, 2014, Montreal, Sri Lanka Guardian) When we board an aircraft on a flight, none of us - under normal circumstances - would ever think of the possibility of the aircraft being taken down by the confident captain whose reassuring voice comforts us during times of turbulence when we are 35,000 up in the air sipping our gin and tonics. We unreservedly trust the expertise of the humble chap in overalls who checks the plane before takeoff; the glamorous stewardess; and above all the reassuring captain in whose hands we place our lives. In fact, Annex 6 to the Convention on International Civil Aviation (Chicago Convention) which prescribes principles for international civil aviation provides that the pilot-in-command is responsible for the operation and safety of the aeroplane and for the safety of all persons on board during flight time.

MYSTERY: There has been no trace of Malaysian Airlines flight MH370 [GETTY]

Yet, bizarre things can happen. In 1999 EgyptAir Flight 990 plunged into the Atlantic Ocean near the Massachusetts island of Nantucket, killing all 217 aboard. The co-pilot was alone in the flight deck. He is alleged to have switched off the auto-pilot, pointed the plane downward, and calmly repeated the phrase “I rely on God” over and over, 11 times in total before going down with all whose lives were his responsibility during the flight. No one concluded it was a suicide.

In 1997 SilkAir Flight 185 plunged into a river during a flight from Jakarta, Indonesia, to Singapore, killing all 104 passengers and crew. The investigation carried out by United States authorities found that the Boeing 737 had been deliberately crashed, but an Indonesian investigation was inconclusive.

In November 2013 a Mozambican Airline plane bound for Angola crashed killing 33 people on board. It is reported that preliminary investigations indicate that the pilot intentionally brought the aircraft down, and the investigators are looking at possible motives. In the ten years ending 2012, 2758 fatal aircraft accidents had been reported, only 0.03 per cent ( 8 suicides to be exact) being suicides attributable to the pilot. This fact was divulged in a 2014 Report released in the United States which found that all eight suicides involved men, with four of them testing positive for alcohol and two for antidepressants.

The 8 cases ranged from a pilot celebrating his 21st birthday who had been jilted by a woman with whom he had an unrequited relationship, to a 69-year-old pilot with a history of drinking and threatening suicide by plane. Seven of the cases involved the death of only the pilot; in the eighth case, a passenger was also a fatality.

Such intentional acts are hard to prevent and even harder to predict. The only philosophy that applies to a pilot is based on three assumptions: They are: the special skill and expertise the pilot is presumed to possess; the enhanced duty of care expected of the pilot in view of such special skill and expertise; and the magnitude of the damage that may be caused in the eventuality of a breach of the duty by the care by the pilot.

The integrity of aircrew is entirely dependent on the question “are you fit to fly”? This of course means "are you fit to fly, both physically and mentally"?. It is only the crew member who can answer that question. Thus, it boils down to a matter of trust between the crew member, the operator and the hapless passenger.

International regulations adopted under the auspices of the International Civil Aviation Organization (ICAO) require that a pilot has to have a certificate of competence issued by the State in which the aircraft he flies is registered, if he were to undertake flying an aircraft. This requirement is articulated in Article 32 of the Chicago Convention. Medical certification is an essential component in the licensing process and conditions and guidelines for the issuance of such certificates are provided in detail in ICAO documents. The overall responsibility of the pilot for the safety of his flight and that of persons therein which is legally recognized by international treaty, has necessitated the grounding of pilots for many reasons where their health (physical and mental) did not reach the standards required, which in turn has resulted often in the concealment by pilots during their medical examinations of pre-existing medical conditions.

The pilot operates in a highly complex environment, particularly in single pilot operations. Contemporary commercial airline practice and the tenets of air law attribute to the pilot of an aircraft absolute responsibility for the safe operation of his aircraft. This responsibility can be carried out only if the pilot is not negligent or if he enjoys basic health as required by applicable regulations. The Airline Pilots Association International (ALPA) has a code of ethics for airline pilots which stipulates inter alia that a pilot will not knowingly falsify any log or record nor will he condone such action by other crew members. Furthermore, the code requires the pilot to keep uppermost in his mind that the safety, comfort, and well-being of the passengers who entrust their lives to him are his first and greatest responsibility. The pilot also undertakes that he will never permit external pressures or personal desires to influence his judgment, nor will he knowingly do anything that could jeopardize flight safety and that he will remember that an act of omission can be as hazardous as a deliberate act of commission, and he will not neglect any detail that contributes to the safety of his flight, or perform any operation in a negligent or careless manner.

These ethics impliedly require a pilot to divulge to his employer and insurer any medical condition and medications taken to treat that condition. The typical pilot’s disability insurance coverage is given upon the pilots assurance inter alia that he is not aware of any deterioration in general health, hearing, eyesight or blood pressure, and that in the event of any fraud, misstatement, concealment or failure to disclose information in response to any question, whether intentional or inadvertent, the coverage given will become void and no benefits will be payable. There have been several instances where pilots have either falsified or concealed their medical history. One commentator records 46 instances of pilots in Northern California in the United States who did not disclose their debilitating health to the Federal Aviation Administration (FAA) that would have disqualified them from obtaining their pilots licenses. The pilots in question had claimed to be medically fit to fly, yet at the same time were receiving social security payments for medical disabilities. This discovery was a result of an investigation started by the FAA In July 2003, when, the Department of Transportation Office of Inspector General (DOT-OIG) and Social Security Administration Office of Inspector General (SSA-OIG), citing safety and security concerns, initiated a joint investigation to identify pilots misusing Social Security numbers. During the course of the investigation, social security records identified individuals who also held FAA medical certificates and who were receiving Social Security Administration (SSA) disability benefits. The DOT-OIG and SSA-OIG launched an 18-month probe termed "Operation Safe Pilot" in coordination with the U.S. Attorney's Office (USAO) to look into possible fraudulent activity. 40,000 pilots were suspected of lying or falsifying their medical history and it was discovered that 3,220 pilots with current medical certificates were collecting SSA benefits, including disability benefits.

It has been recorded that a surprisingly significant number of pilots face denial of medical certification because they are taking antidepressant or serotonin blocker drugs (SSRI's) such as Prozac, which could imperil a pilot's functions. Medical certification requires that airmen be able to exercise the duties privileges of a pilot in the class applied for. In addition, numerous medical conditions will disqualify a pilot from obtaining medical certification, including, inter alia: diabetes mellitus, myocardial infarction, cardiac valve replacement, permanent cardiac pacemaker, personality disorders that are severe enough to have repeatedly manifested itself by overt acts, substance dependence or abuse, and epilepsy. Another cause for denial of certification of a pilot is organ transplant, on the basis that there could be a risk of a pilot suffering side effects of rejection during flight from immunosuppressant drugs, or that the organ might be rejected. Medical certification of a pilot and the consequent award of a license hinge both on the health of the pilot as well as the welfare of the persons carried by him in the aircraft

In March 2007, The United States House Transportation and Infrastructure Committee Chairman James L. Oberstar released a Committee Oversight Report which documented "widespread fraud" among pilots who do not disclose and deliberately hide from examining physicians medical conditions that would critically impact their ability to fly an aircraft so that they could retain medical certification for their FAA pilot certificates. To counter this dangerous trend, The Aircraft Owners and Pilots Association (AOPA) offered the US Congress a plan that would encourage pilots to disclose their infirmities at the medical examination, adding that AOPA does not condone false statements on a pilot’s medical application.

In April 2010, the FAA announced the possibility of a special medical certificate being issued to pilots who are under medication for mild to moderate depression, so that they could be exempt from conditions that prohibit them from all flying duties. This measure is consistent with the findings of a 12 year study conducted by a team of aviation medicine specialists in Australia which was released in 2007 which said that taking the drugs does not increase the risk of accidents, while banning them could increase risks by encouraging depressed pilots not to seek treatment.

Also in April, 2010, both Houses of Congress passed the Airline Safety and Pilot Training Improvement Act, section 206 a. 1. A of which provides inter alia that flight crewmember mentoring programs will be established under which an air carrier will pair highly experienced flight crewmembers who will serve as mentor pilots and be paired with newly employed flight crewmembers. The provision states further that mentor pilots should be provided, at a minimum, specific instruction on techniques for instilling and reinforcing the highest standards of technical performance, airmanship, and professionalism in newly employed flight crewmembers. Section 212 a (1) requires the Administrator of the Federal Aviation Administration to issue regulations, based on the best available scientific information, to specify limitations on the hours of flight and duty time allowed for pilots to address problems relating to pilot fatigue. The FAA relies on pilots to tell the truth about their physical and mental condition during the medical examination process.

In December 2010, The European Union (EU) Commission debated a revision to its regulations on medical certification of pilots which provided inter alia that licence holders will not exercise the privileges of their licence and related ratings or certificates at any time when they: are aware of any decrease in their medical fitness which might render them unable to safely exercise those privileges; take or use any prescribed or non-prescribed medication which is likely to interfere with the safe exercise of the privileges of the applicable licence; or receive any medical, surgical or other treatment that is likely to interfere with flight safety. The European Aviation Safety Agency (EASA) in its opinion on the draft revised regulation, drew the attention of the Commission to the diversity of medical practices and regulations in the various member Sates of the EU and exhorted the Commission to consider Regulations of ICAO as the common basis for such a revision.

EASA provides expert advice to the EU with regard to drafting new legislation on safety which includes the subject of fatigue risk management. Standards for European carriers. The Agency implements and monitors safety rules and carries out inspections in the EU member States, with a view to assisting member States in fulfilling their obligations under the Chicago Convention. In this context, flight time limitation (FTL) requirements are addressed through general safety objectives set out in its Basic Regulation which sets out essential requirements. The basic premise used by EASA is “one size does not fit all” and that rules should be proportionate to the nature and complexity of the operations, as well as to the level of risks involved. Another principle that is followed by EASA is that rules should be flexible in order to allow operators to use FTL schemes adapted to their operational needs.

The most critically important issue is that the pilot should not fly if he is aware of a pre existing condition that could result in a physical or mental impairment that would affect his judgment. The most pertinent fact of concealment of vital medical facts by the pilot is grounded on the principle suggestio falsi or suppressio veri (making false statements or suppressing the truth). The seriousness of a concealment by a pilot of a pre existing medical condition can be distinguished from such a condition which concerns any other, in that a pilot occupies a special position of responsibility. According to accepted principles of law as laid down by international convention, it is incontrovertible that the final responsibility for the safe operation of an aircraft 1ies with the pilot.

Of course, in an instance where the pilot intentionally takes down an aircraft full of passengers, and unless he survives, he would not be present to answer legal allegations. This is the tragedy of aircraft assisted suicide.

The author is an aviation consultant with 30 years work experience in aviation. He worked for 23 years at the International Civil Aviation Organization as Senior Air Transport Officer and Senior Legal Officer respectively.



ARCHIVES FROM AUGUST 2007 TO JANUARY 2015