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estimation of risk imposed by the individual upon flight safety is a most difficult task and one often
requiring experts in a number of aspects of both medicine and aviation. Decisions should recognize that
public interest and safety is the statutory basis for personnel licensing.
ICAO Preliminary Unedited Version — October 2008 I-3-9
Medical deficiency compensation and flight safety
Where a medical deficiency exists, the extent to which flight safety is affected is the vital factor, rather
than the extent to which failure to attain the medical requirements is capable of being compensated. In
some cases the question of compensation for a deficiency will be irrelevant, for example where the risk is
one of sudden incapacitation rather than inability to physically carry out a required task. In other cases,
the ability to compensate, for example, for an orthopaedic dysfunction may be an important factor in the
over-all assessment of the effect on flight safety. Previously acquired skill and experience may similarly
be irrelevant or important to the over-all assessment of the safety risk.
Society and the individual
Many societies have a concept of individual rights such that if the exercise of those rights does not
involve public safety, the individual may decide whether or not to incur a personal risk. In the context of
flight, the right of an individual to incur a personal risk can rarely be accepted because of potential effects
on flight or public safety. A possible exception may be the private pilot who carries no passengers, flying
in an isolated area.
Knowledge and technical capabilities are advancing rapidly in both medicine and aviation. The medical
assessor and his advisers must be aware of these advances in reaching their decisions but must avoid the
appearance of gathering experience through trial and error in the exercise of the flexibility Standard.
Annex 1 Standards and Recommended Practices are not irrevocably permanent and can be amended by
constitutional means in ICAO when it is clearly necessary to do so. While they are in force they must be
adhered to unless it is demonstrably safe to exercise flexibility and where serious injustice to an
individual would otherwise result.
The provisions of Annex 1 show that differing assessments are permissible and possible by defining
different requirements dependent upon anticipated duties and the category of aviation involved. Society’s
concern in flight safety varies according to each individual’s contact with air transportation. Those who
travel as fare-paying passengers in aircraft of commercial air transport operators, those who travel by
private aircraft, those whose main duty is the ground control and movement of aircraft, and those over
whose property aircraft operate, all show different concern. The accident rate in commercial aircraft
operations, although of a low order, invariably elicits public concern quite out of proportion to the
apparent lack of dismay at the record of road traffic accidents. The public adopts an attitude towards the
commercial air transport operator that automatically demands and expects the highest possible standard of
care and efficiency towards those who pay for their service as air carriers. This is understandable when it
is remembered that individual passengers generally have no choice or bargaining power in selecting their
aircraft, flight crew or flight path. Air transport operators have accepted the duty of performing all their
services with the highest possible degree of safety and the public does not overlook apparent lapses in the
exercise of this duty. For this reason, if for no other, the regulations applied by Contracting States must be
shown to attain the object for which they were devised and the making of exceptions under a clause such
as 1.2.4.8 of Annex 1 can only be done by bearing in mind fully the flight safety aspect in its widest
context.
The terms “waiver” and “flexibility”
Annex 1, 1.2.4.8 is a Standard but is frequently referred to as the “waiver clause”, and the term “medical
waiver” in connection with medical certification and licensing is generally accepted. The use of the term
“waiver”, which in legal usage means “an act of dispensing with a requirement”, and the verb “to waive”
which is defined as “not to insist upon”, “to ignore, neglect or disregard”, “to refrain from applying or
enforcing (a rule etc.) or “to make an exception”, is unfortunate.
ICAO Preliminary Unedited Version — October 2008 I-3-10
In fact the correct exercise of “flexibility” as described in 1.2.4.8 is quite the opposite of “waiver”
　
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