04/07/2015 01:22 EDT | Updated 06/07/2015 05:59 EDT

Could a Disaster Like Germanwings 9525 Happen in Canada?


A lawyer assesses whether doctors can prevent a similar aviation catastrophe here.

As information emerges about the psychology and intentions Andreas Lubitz, his story is transforming more and more from a mystery into a horror: Lubitz appears not only to have been responsible for crashing Germanwings Flight 9525, killing all 150 people onboard; he appears to have done so deliberately--after disregarding medical advice that he was unfit to fly and failing to inform his employers of that advice.

As Lubitz's medical record becomes public, we're learning he'd been suffering from an illness or illnesses, including severe depression, and possibly including a loss of acuity in vision, something he concealed from his employer. We're also learning German authorities found and removed from his home torn-up medical documents from his doctor declaring him unfit to work the day of the crash.

Whatever ends up plausibly explaining Lubitz's behavior, why did German aviation authorities, and Lufthansa (Germanwings's parent company), not also know that a doctor had concluded he was unfit to fly? What did Lubitz's doctor do with the information other than write him a note? And why, as we are now learning, did Lufthansa fail to inform German aviation authorities of Lubitz's history of depression? These are questions the German and French investigating authorities will be pursuing in the days to come.

But here's a hypothetical question for us, meanwhile: What if similar circumstances were to arise here in Canada, with a Canadian pilot?

The best way to get at the answer is to start with a non-hypothetical: What are the obligations and responsibilities of Canadian physicians who have pilots as patients?

Because confidentiality is a basic principle in the relationship between a doctor and a patient, any obligation for a doctor to report on a patient's condition to a third party must be created by statute.

In Canada, most major modes of transportation are subject to such legislation -- as set out, for instance, in the Aeronautics Act (with respect to "a flight crew member, an air traffic controller or other holder of a Canadian aviation document"), the Canada Shipping Act, 2001 (with respect to a "Canadian maritime document" which includes a ship master's certificate of competency) and under the Railway Safety Act (with respect to person holding certain positions including "a position critical to safe railway operations").

Considering airline pilots in particular, the Aeronautics Act says:

Where a physician or an optometrist believes on reasonable grounds that a patient is a flight crew member, an air traffic controller or other holder of a Canadian aviation document that imposes standards of medical or optometric fitness, the physician or optometrist shall, if in his opinion the patient has a medical or optometric condition that is likely to constitute a hazard to aviation safety, inform a medical adviser designated by the Minister [of Transport] forthwith of that opinion and the reasons therefor. [Emphasis added.]

The Act also obliges the patient to tell the physician or optometrist that he or she is "holder of a Canadian aviation document," and it precludes any legal or disciplinary action against the physician or optometrist where they've act in good faith in reporting a patient.

In addition, the Act provides for regulations relating to the "accreditation or licensing of flight crew members ... and other persons providing services relating to aeronautics." The result is the Canadian Aviation Regulations, which specify the medical requirements for an examination by a Civil Aviation Medical Examiner (CAME) appointed by the Minister of Transport. The regulations require, as well, that pilots take medical exams for the granting and renewal of their commercial licenses. And the examining CAME has an obligation to advise any pilot if he or she is "unfit" for duty.

All of this is somewhat comforting.

A pilot is obliged to tell any physician or optometrist he or she consults that he or she is a "holder of an aviation document," and the physician or optometrist is then obliged to report "forthwith" to the minister's designated medical advisor any condition that is considered likely to constitute a hazard to aviation safety.

Under the Act the minister is then authorized to make any use of the information he or she considers necessary in the interests of aviation safety. That could, and should, include immediate communication with the pilot's employer to ensure that the pilot is not in control of an aircraft until the medical conditions in question are addressed. The physician or optometrist is protected from any legal or disciplinary action--provided, of course, that he or she has acted in good faith in compliance with the Act.

Now, none of this could, on its own, prevent a pilot from going to a physician or optometrist, failing to disclose that he or she is an airline pilot, and then ignoring any medical or optometric advice he or she gets. But if a physician or optometrist believes on reasonable grounds that the patient is an airline pilot with a condition likely to constitute a hazard to aviation safety, that physician or optometrist is obligated to report--and if they don't, it is possible they could be prosecuted for the failure and even become liable for any resulting financial damages, personal injury, or death.

This leaves a few situations that could result in a failure to intervene: (a) The pilot doesn't consult any physician or optometrist about personal medical concerns which might affect their ability and performance as a pilot; (b) the pilot consults a physician or optometrist, but doesn't disclose the nature his or her employment, or lies about it, and the physician or optometrist has no reasonable grounds to believe that the patient is a pilot; (c) the physician or optometrist fails to report when he or she should; (d) there is a delay in reporting by the physician or optometrist; or (e) there is a delay in taking appropriate action at the regulatory level by Transport Canada.

So while a situation like the Germanwings disaster is highly unlikely in Canada, it is possible. If anything prevents it from happening here, it will be the vigilance of everyone responsible at every level of the regulatory system.

That means: ensuring the appropriate and periodic medical and psychological assessment of pilots; the support of the airline employers; the appropriate treatment and protection of pilots who do disclose medical or other conditions that may affect their ability to safely fulfill their obligations and performance as a pilot; the prompt action of any physician or optometrist who has reportable information; and prompt and responsible action by the Minister of Transport and all those under the minister's direction and control.

No laws or regulations can make air travel entirely safe from another Andreas Lubitz. And no one should now distrust commercial pilots, who are as a profession highly trained, highly competent, and deeply devoted to the safe carriage of their passengers. But if everyone in our regulatory system, starting with our doctors, now brings the highest vigilance to assessing pilots' fitness to fly, it will be the best response Canadians could have to the recent horror in the French Alps.


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