This was a comment made in response to my post ‘What is a paramedic’s ‘authority to practice’? (19 August 2014)
This is a very informative post. I would be appreciative if you could confirm a doctor’s ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid.
Responding to this comment was so important that I’ve made it a separate post so it is not ‘lost’ in the comments.
A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.
I’m not sure what state the comment came from, so I’ll stick to NSW. Section 17A of the Poisons and Therapeutic Goods Act 1966 (NSW) says:
A nurse is authorised to possess, use, supply or prescribe a poison, restricted substance or drug of addiction for the purposes of the practice of nursing, if:
(a) the nurse’s registration is endorsed under section 94 of the Health Practitioner Regulation National Law as being qualified to possess, use, supply or prescribe that poison, restricted substance or drug of addiction, or
(b) the nurse is a nurse practitioner who is authorised in writing by the Director-General to possess, use, supply or prescribe that poison, restricted substance or drug of addiction.
It says nothing about being ‘delegated’ permission by a doctor. A medical or nurse practitioner must not prescribe or supply drugs of addiction (s 28) without a proper authority. A proper authority is issued by the Director General of Health, not any doctor who chooses to.
A person must not possess a prescribed restricted substance unless they are, inter alia, a nurse practitioner authorised under s 17A (see above); or is getting the substance in accordance with a prescription, or is caring for the person for whom the drugs have been prescribed or otherwise approved by the Director General (s 16; see also s 23 ‘Possession and supply of drugs of addiction by carers’); not who is authorised by ‘a doctor’.
It is an offence to supply schedule 1, 2 or 3 drugs unless the person is a nurse practitioner authorised by the Director General (s 10); not who is authorised by ‘a doctor’.
A prescription for a restricted (Schedule 4) substance or drug of addiction (Schedule 8) must contain, inter alia, the patient’s name and address (Poisons and Therapeutic Goods Regulation 2008 (NSW) clauses 35 and 80). Clearly one cannot write some general prescription to issue drugs to someone the nurse thinks should get the drugs.
Both nursing and medical practitioners are registered under the Health Practitioner National Law. Unprofessional conduct, of a registered health practitioner includes ‘the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession’ (Health Practitioner National Law s 5). A nurse who is carrying schedule 4 or schedule 8 drugs because ‘a doctor told them they could’, would be acting in contravention of the Poisons and Therapeutic Goods Act 1966 (NSW) (or its equivalent in other jurisdictions) and could expect to be prosecuted and subject to professional discipline.
A relevant health registration board can establish codes of conduct that are relevant in determining whether or not a practitioner’s conduct ‘constitutes appropriate professional conduct or practice for the health profession’ (Health Practitioner National Law ss 39 and 41). The Medical Board of Australia’s ‘Good medical practice: a code of conduct for doctors in Australia’ says that good medical practice requires
2.1.1 Assessing the patient, taking into account the history, the patient’s views, and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects.
Somehow ‘authorising’ others to carry and use drugs does not involve making that assessment. A doctor who purports to authorise people who are not authorised under the relevant drugs legislation to carry drugs and in effect treat people as the doctors’ agent is not engaged in good medical practice. They can expect to be liable in the event of a poor outcome and to be subject to disciplinary action.
Nurses are, and paramedics want to be, health professionals. They have their own skills and their own professional standards. They do not, and should not consider that they practice their professions because doctors authorise them to do so. Doctors are not the authority that determines who can carry and use drugs, the Parliament is and the parliament determines who can give other authority, in NSW it’s the Director General of Health.
To reiterate: A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.
Australian Emergency Law 
Hi Michael,
In saying all the above can I give an example that confuses me.
At present members of Surf Lifesaving Australia; both paid staff and volunteers have the ability to undergo a pain management accreditation to enable them to administer Methoxyflurane in their own theatre of operations in the community.
This would therefore become a case of someone with no medical training-besides the SLSA pain management award- identifying the need for and then delivering a Schedule 8 drug.
Where does the law lie with this particular example?
Kye, methoxyflurane is not a schedule 8 medication.
Sorry; schedule 4 drug then. Still falls within
“A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.”
And it doesn’t matter whether it’s schedule 4 or 8, my reply about authorisations still applies.
Thanks for the quick response Michael, was just wondering is all.
Lots of people have exemptions or authorities to use various drugs, some of which are helpfully set out in regulations – see:
• Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT);
• Medicines, Poisons and Therapeutic Goods Regulations 2014 (NT);
• Poisons and Therapeutic Goods Regulations 2008 (NSW) (see in particular, Appendix C)
• Health (Drugs and Poisons) Regulation 1996 (Qld) (see in particular ss 52-72);
• Controlled Substances (Poisons) Regulations 2011 (SA);
• Poisons Regulations 2008 (Tas);
• Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) (in particular, Reg 5);
• Poisons Regulations 1965 (WA) (in particular, ss 3A-3H).
Apart from these exemptions the relevant department can give authority to have and use scheduled drugs (see, for example, Poisons and Therapeutic Goods Regulations 2008 (NSW) clause 170). Where those authorities are given they are not publically available so one cannot see the precise terms upon which the authority has been granted.
One can infer that Surf Lifesaving has been given an authority, in each jurisdiction, to allow its members to carry and use Methoxyflurane, and they are not alone. Again to use NSW as an example, in that state a person who holds a current occupational first-aid certificate approved by the WorkCover Authority (Appendix C, cl 9); a person employed to provide first aid at a mine (Appendix C, cl 11) and a ski patroller who holds a valid first aid certificate issued by the Australian Ski Patrol Association (Appendix C, cl 14) can all carry and use Methoxyflurane.
The use of particular authorities is how various private ambulance providers operate, they must have applied for, and received an authority to use the drugs that are essential to their work. If paramedics were registered health professionals the right to use and carry the necessary drugs could be given to paramedics and they would carry that authority with them. As it is the authority is given to ambulance services who in turn authorise their staff. If a paramedic ceases employment they also lose any authority to carry and use drugs regardless of their skill, knowledge or experience.
Hi Michael, a very informative post. Thanks for all the interesting and good work you’re doing. After reading the above it seems to me that unless a drug is an S4-S8 drug then members of the public are legally allowed to use them. I’d like to posit a hypothetical situation and see if this would be considered legal or not. A paramedic undertakes a camping trip with a group of friends and the paramedic has obtained permission to stock their first aid kit with non S4-S8 drugs from the ambulance service they work for. During the trip one member sprains their ankle and the paramedic administers methoxyflurane and panadol. Another member experiences angina and the paramedic administers oxygen, GTN and aspirin. A third (let’s just say) undergoes mild hyperthermia and the paramedic administers a fluid bolus of normal saline IV plus panadol. Would all of this be legal in Australia? I know that in other parts of the world this would be considered practicing medicine without a license.
The details may vary jurisdiction to jurisdiction but I’ll stick with NSW as my example state as that’s what I’ve been doing throughout this conversation. It’s not correct that ‘unless a drug is an S4-S8 drug then members of the public are legally allowed to use them’ – there are 10 schedules, though, for some reason, schedule 1 is not used. The schedules are:
There are restrictions on all schedule drugs. The drugs relevant to first aid and emergency care are in schedules 2, 3, 4 and 8. If a drug is not scheduled, then yes, anyone can use them.
NSW Ambulance officers can use and carry schedule 2, 3, 4 and 8 drugs. Appendix C, cl 7 to the Poisons and Therapeutic Goods Regulation 2008 (NSW) says:
They are also ‘authorised to have possession of, and to supply, drugs of addiction’ if approved by the Director-General (Poisons and Therapeutic Goods Regulation 2008 (NSW) reg 101).
So whether or not the scenario described is legal depends entirely on the terms of the Director-General’s approval and whether he or she has approved the use of these drugs by paramedics when ‘off duty’. In your scenario you’ve said ‘the paramedic has obtained permission to stock their first aid kit with non S4-S8 drugs from the ambulance service they work for’ but the more interesting question is to assume that they have no authority when ‘off duty’, that is the authority of the Director-General is limited to allow the possession and use of these drugs only in the course of the paramedics employment.
The issue then is what schedule do the drugs fall into. The drugs you’ve listed are:
• Methoxyflurane (Schedule 4);
• Panadol (Paracetamol) (not scheduled if in a pack of not more than 20 tablets, each tablet containing not more than 500mg paracetamol);
• Oxygen (not scheduled);
• GTN (glyceryl trinitrate) (Schedule 3 when in preparation for oral or rectal use, otherwise schedule 4);
• Aspirin (not scheduled when packed appropriately); and
• Saline IV (not scheduled).
Asprin appears in schedules 2, 4, 5 and 6 and Paracetamol appears in schedules 2 and 4, but I’m assuming the paramedic has the sort of pack you can buy from the supermarket. I’ll also assume the GTN is indeed for oral use and therefore schedule 3.
To be clear, if the paramedic has approval to carry the scheduled drugs then there’s nothing unlawful, it’s not actually illegal to practice medicine without a licence, it’s illegal to call yourself a doctor (see Health Practitioner Regulation National Law (NSW) Division 10).
If he or she doesn’t then carrying and possessing the schedule 3 and 4 drugs is illegal but it wouldn’t necessarily mean the use was unlawful. It may be illegal to carry a concealed weapon, but if I’m being attacked and honestly believe, on reasonable grounds, that my life is in danger and the reasonable response is to use the gun, the actual use may be lawful even though the possession is not. In that case the defence would be self defence; in the case of drugs necessity (where the drugs are available, their use warranted by the patient’s condition and the treatment is given in a good faith effort to enhance the patient’s best interests) could be a defence. The Good Samaritan provisions of the Civil Liability Act 2002 (NSW) would not be a defence as they provide a defence to claims for civil liability, not criminal liability.
The use of the Schedule 3 and 4 drugs is not unlawful if they have been prescribed for the person but I would infer that would only be relevant with respect to the GTN.
The use of Panadol, oxygen, aspirin and saline is fine.
Excellent article and very relevant to my current role within the resource sector in WA. Having worked as a Paramedic in Victoria, I now find myself in the Pilbara working under a “Poison Permit” signed by a Doctor (who works for an Occupational Medicine provider). I have a range of medications in my little cupboard, including S8’s that I can administer in an “emergency” and then seek retrospective permission from the poison permit holder. If not an “emergency”, the current “protocol” is to contact the permit holder and get permission to administer S4 and S8 medications. In reference to your article, are we actually legally able to store such medications in WA on site, under the ‘licence’ or permit of a doctor and can we administer anything in the S4 and S8 range without direct consent from the permit holder? The other can of worms is when we are asked by RFDS or WA Police to respond to the community such as an RTA on the Northern Highway in the middle of nowhere. In the absence of any ‘real’ protocols from the permit holder, can the general public be administered S4 and S8 medications in the absence of direct approval of the permit holder – given we’re now off the mine lease and usually out of radio/phone contact? Thanks.
In Western Australia the relevant Act is the Poisons Act 1964 (WA) and Poisons Regulations 1965 (WA). Without the permit the best I can do is make an educated guess here. First I think you will find the permit is issued to the company, not the doctor, and it probably allows the company to have poisons and to authorise its employees to use and carry the drugs. The endorsement one can imagine is something like those for ambulance officers, where they can carry and use the drugs that their employer has authorised. The employer/permit holder has to have a process and presumably they have employed the doctor you refer to and so it’s his or her job to approve you. If you have scheduled drugs, it is not because ‘a doctor’ says you can, but because your employer has a permit that says they can and that they can authorise you.
The idea of ‘retrospective permission’ is silly (no disrespect to you, I’m sure it’s the term they use, it’s just meaningless); you can’t get ‘retrospective permission’. The protocol is that you can administer the drug in an emergency but if it’s not an emergency you need to get permission. If it is an emergency you administer the drug and the doctor reviews the situation to ensure that it was appropriate but it’s not retrospective permission because what happens if he or she doesn’t give it? The drug has still been administered and any harm done. As you are (I infer) an employee then if you were negligent and injured your patient your employer will be liable regardless of whether there is ‘retrospective permission’. It’s a quality assurance mechanism so if the doctor thinks a mistake was made then steps can be taken to clarify protocols or correct practices. If your patient was an employee of the same employer then they are covered by no fault worker’s compensation in any event so the issue of ‘liability’ is fairly irrelevant.
So without seeing the permit I would suggest that the correct legal position is that your are legally able to store such medications in WA on site, under the terms fo the permit issued to your employer which may require that you be endorsed by the company or a person nominated on the permit to endorse or approve the staff who hold those drugs. The permit would I suggest have been issued only when satisfied that there were adequate controls on the storage of the drugs, the employment of appropriate people (such as you) and some quality assurance hence the need to get permission to administer the drug in a non-emergency and to have the case reviewed after the event if it was an emergency. You cannot store such medications in WA on site, under the ‘licence’ or permit of ANY doctor just because they are a doctor.
If you respond to an MVA at the request of RFDS or WA Police then presumably there is some understanding between your employer and those agencies to the effect that you will do that. That may be a formal MOU or just acknowledgement that it happens. Either way you’re turning out on behalf of your employer so it’s your work, so all the work protocols will apply. There is no law against providing an ambulance service in WA (there is no ambulance legislation in WA) so the issue will be the terms of the permit; but if you stick to your protocols there won’t be a problem. And if you’re lawfully in possession of the drugs, know how to use them, realise the patient will benefit but can’t get radio/telephone access it would still be reasonable to administer them even if your protocol says you should get prior approval, because that can only apply where that approval can actually be obtained. To withhold drugs that are actually warranted in circumstances where you have them and have knowledge to use them would, appear to me, to be unethical and perhaps negligent – I assume you turn out in a vehicle that looks like an ambulance, you are identified as paramedics and you have the gear but don’t use it? Can that really be reasonable? (See, if you can, Michael Eburn and Ruth Townsend With Townsend, R., ‘Restricting Paramedic Practice – An Issue of Professional Practice’ (2014) 41(2) Response (Official Journal of Paramedics Australasia) 33-35.
Super discussion. This delegation of authority has me thinking. An appropriate Qld Health pharmacy official informed me nurses are authorized to carry up to S4s, paramedics are authorized to use and carry up to S8sand are authrised to carry expired drugs to parmacy for disposal.
In a mine site setting is it legal then, in Qld for the medical director (doctor) who holds the poisons license for the site, to delegate authority to a non-medical manager of safety at a mine site to carry expired S4, S6 to the nearest pharmacy for disposal?
Many thanks
It would depend on the terms of the authority and whether it gave him or her the power to delegate. If it says that any person authorised by the doctor is permitted to possess those drugs then fine. If it’s in some other form eg lists the named authorised persons then no they could not do that.