Today’s question comes from:
… an organization that promotes drug policy frameworks that are based on evidence and promote human dignity.
One of our main areas of work is assisting drug services and other organisations to develop and roll-out Narcan/naloxone programs. Naloxone is a medicine that temporarily reverses an opioid overdose.
One thing we would like to see is drug outreach workers carrying naloxone so they can administer it if they encounter someone experiencing an overdose. However, there is a lot of anxiety about whether they would be covered by Victoria’s Good Samaritan laws (the Wrongs Act 1958) and so many of our stakeholders are reluctant to have their outreach workers carry naloxone kits. Given there has not been a test case, the Department of Health and Human Services in Victoria is being very cagey about this and is refusing to offer advice or clarification.
I came across your blog post on Good Samaritan laws in Australia and was wondering what your take on it would be? While we have told services it is unlikely that an outreach worker would not be covered in these circumstances, the uncertainty (and anxiety) remains.
Naloxone is ‘is a drug that can reverse opioid overdose. It … can be injected intravenously (into a vein) or intramuscularly (into a muscle)’ (see Alcohol and Drug Foundation, Naloxone, February 9, 2018). Further naloxone is now listed as in Schedule 3 of the Australian Poisons Standard (February 2018), that is it is anyone can buy it from a pharmacist in order to be able to treat opioid overdose.
The relevant provision is the Wrongs Act 1958 (Vic) s 31B. It says:
(1) A good samaritan is an individual who provides assistance, advice or care to another person in relation to an emergency or accident in circumstances in which—
(a) he or she expects no money or other financial reward for providing the assistance, advice or care; and
(b) as a result of the emergency or accident the person to whom, or in relation to whom, the assistance, advice or care is provided is at risk of death or injury, is injured, is apparently at risk of death or injury, or is apparently injured.
(2) A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith—
(a) in providing assistance, advice or care at the scene of the emergency or accident; or
(b) in providing advice by telephone or by another means of communication to a person at the scene of the emergency or accident.
(3) …
(4) …
There have been amendments to deal with the use of naloxone in other jurisdictions, but these do not appear to have been put in place in Victoria. For example, in the ACT a good Samaritan does not, normally, enjoy the benefit of the Civil Law (Wrongs) Act 2002 (ACT) s 5 if his or her ‘capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug’ (see s 5(2)(b)). That exclusion does not, however, apply:
… if a good samaritan administers the drug known as naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person,
even if they were, at the time, impaired by a recreational drug. The point of that provision is to encourage people who are themselves affected by a drug to use naloxone to resuscitate their friends and fellow drug takers should that be required (and for a commentary see Excluding good Samaritan protection for the intoxicated (March 17, 2016)).
That Victoria does not have an equivalent to the Civil Law (Wrongs) Act 2002 (ACT) s 5(3) is interesting, but not relevant as I don’t infer from my correspondent that drug outreach workers are themselves affected by drugs.
Are they a good Samaritan?
The question becomes: if a drug outreach worker finds someone affected by drugs and goes to assist them, are they are a good Samaritan? Let me assume that the person suffering the drug overdose is ‘at risk of death’ without assistance so the criteria in the Wrongs Act 1958 (Vic) s 31B(1)(b) is met. Let me also assume that the outreach workers are employees not volunteers. As employees they are expected to get paid for their work but are they being paid for ‘for providing the assistance, advice or care’? I don’t actually have a duty statement so I’m guessing here.
My guess is that they are not. North Richmond Community Health in Victoria recently advertised for a person to fill the role of Alcohol and Drug (AOD) Outreach Worker (the ad is still on the web, but it says it’s now closed). The worker’s
… responsibilities will include (but will not be limited to):
- Engaging at-risk marginalised people who use alcohol and other drugs;
- Provision of an outreach case work service;
- Assessing and monitoring clients at risk of overdose and/or who manifest other signs of high level or risky substance use;
- Developing and providing culturally appropriate educational and training resources, tailored to the needs of groups and individuals;
- Employing a range of strategies to deliver harm reduction messages that address safer drug use;
- Implementing an effective NSP to reduce / prevent the spread of blood borne viruses such as HIV, hepatitis B & C and sexually transmissible infections (STIs);
- Provision of a needle/syringe retrieval service and monitoring the area around the NSP for inappropriate drug use and discarded equipment; and
- Routinely collecting data and providing reports as required.
The job is not to provide supervision of those injecting and to be available to provide first aid. That an outreach worker will be called upon to assist is foreseeable but that doesn’t necessarily make it part of the job they are being paid for. What I have in mind is the outreach worker who goes to visit a client and finds them suffering an apparent overdose, rather than a worker who is called and asked to come because there’s been an overdose.
It would be different, I suggest, if the worker were at say a supervised injecting room because there they are there, and being paid, to not only provide supervision but I suggest to actually make it safe (that being the point of a supervised injecting room). In that case if they provide first aid (whether or not that includes naloxone) they are not acting as ‘good Samaritan’s’ but rather performing an essential part of the job.
Why does it matter?
The bigger question is why do the services care about whether or not the workers are good Samaritans for the purposes of the Wrongs Act? I’d be more concerned about an outreach service not issuing naloxone to workers. Presumably it’s foreseeable that an outreach worker will go to a person’s home where the client is likely to be affected by the drug, when the worker finds them there may be no one else to help and there is a pre-existing client relationship. The outreach worker and the service will have a duty to do something; they can’t just walk away from their drug affected client. Further, the organisation that employs the worker has a duty both to the worker and the client. It is foreseeable that to issue naloxone to the worker will allow them to provide immediate care to the patient then it may be that a ‘reasonable’ organisation would do that. Failure to ensure that the worker has the necessary tools, in this case an over the counter drug, to do his or her job may be negligent. A client may have more luck suing a service that failed to equip its staff with the necessary tools to deal with a foreseeable emergency than suing one that did give them those tools.
Further under WHS legislation an employer has a duty to ensure a safe workplace. Part of that duty is to provide first aid in the workplace (see WorkSafe Victoria ‘Compliance Code: First Aid in the Workplace’ (1st ed, September 2008)). No doubt the outreach workers have a first aid kit in any car they are required to drive to work, it begs the question of why doesn’t it have naloxone given the nature of their work?
And if the worker is a supervisor at a supervised injecting room failure to ensure naloxone was available on site would, in my view, be clear evidence of negligence.
Conclusion
Without specific duty statements it’s impossible to be definitive but I would infer that an outreach worker who does provide assistance in an emergency with his or her client is a ‘good Samaritan’ as it’s not specifically part of their job to provide emergency care even though it is foreseeable that they may be called upon to do so. I think that would be different if they were say, working in a supervisory capacity in a safe injecting room.
The bigger question is what are they scared of and why do they think they need the protection of the Wrongs Act? Further if they are not good Samaritans, and so don’t benefit from that protection, then given the risk of finding their patients with an overdose it would be easier to argue that there is negligence (by the employer) in not issuing naloxone and that risk is likely to be higher than training the staff in how to use it and putting it in their work kits.
Again it’s one of those questions where I ask ‘what do people think is going to go wrong?’ And how can it be better not to give lifesaving equipment because of a fear of liability when the risk of liability for trying to save someone’s life is less than the risk of saying ‘I could have helped my client (not a stranger) but I didn’t want to because I’m afraid of the law’? That’s not acting ‘in good faith’.
In simple terms – either they are good Samaritans in which case let them carry naloxone; or they’re not in which case issue naloxone so they can meet their duty to their vulnerable clients in circumstances where it is foreseeable that they may find their client suffering an overdose or it’s act now or watch them die whilst waiting for the ambulance.
Australian Emergency Law 
The problem with naloxone is the halflife being less than the active drug. Thus one’s care does not end after injecting naloxone. There are two potential accidents waiting to happen, 1) naloxone is given, and an ambulance is not called because the effects are reversed, only to have a recurrent event later. Or 2) an ambulance is called but now with a clear mind the patient refuses care and or absconds only to have a repeat event somewhere else potenially harder to find.
When I say this, I don’t advocate one way or the other. There is a clinically smart (read: safer) way to administer naloxone that health pfofessionsls are able to do, titrating to effect, and then there is the other way, ie a bolus which is easier and more understandable for untrained individuals to do. The question is and always will be, do we hold the rescuer liable if post treatment the patient chooses to do something stupid and hurts themselves further? Good luck with that answer because we’re still trying to answer it effectively in the hospital system.
“The question is and always will be, do we hold the rescuer liable if post treatment the patient chooses to do something stupid and hurts themselves further?” I’ll be quite firm in saying, in the circumstances described, there is no risk to the first aider/outreach worker who administers naloxone in the way it is intended to be administered when bought from the pharmacy (ie bolus does) and the patient then ‘chooses to do something stupid and hurts themselves further’. The hospital system and the facts of various cases that you may be referring to (consider Hunter Area Health Service & v Presland [2005] NSWCA 33) are so far removed from the circumstances being anticipated here. I can imagine an issue if the outreach worker doesn’t also ring an ambulance when administering naloxone but those risks would be easily managed by training and protocols.
Great article, thank you. If the premise is that workers would actually carry organisation-issued naloxone for the purposes of responding to overdoses I think the issues of supply and possession also need to be addressed, as naloxone is a schedule 3 restricted substance and, at least in Victoria, can normally can only be supply by certain authorised persons (pharmacists, doctors, nurse practitoners) to individuals once a therapeutic need is established. This could really never be the case in these circumstances, as a worker is responding to an acute situation. Without legislation specifically enabling workers to carry naloxone for this purpose, I’m not sure they are legally covered to carry naloxone at all. (not a lawyer).
Schedule 3 drugs are ‘Pharmacist Only Medicine – Substances, the safe use of which requires professional advice but which should be available to the public from a pharmacist without a prescription’ (Poisons Standard February 2018). “NALOXONE when used for the treatment of opioid overdose” is listed in Schedule 3.
You are correct about the Victorian legislation and it would be the same nationwide. The Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 141 says:
(1) A pharmacist must not sell, supply or administer a Schedule 3 poison unless—
(a) that poison is for the treatment of a person under the pharmacist’s care; and
(b) if the poison is a drug of dependence, the pharmacist has taken all reasonable steps to ascertain the identity of the person who is to be treated.
Penalty: 100 penalty units.
(2) Subject to subregulation (3), a pharmacist must not sell, supply or administer a Schedule 3 poison unless the pharmacist has taken all reasonable steps to ensure a therapeutic need exists for that poison.
Penalty: 50 penalty units.
(3) A pharmacist is not required to take all reasonable steps to ensure a therapeutic need exists if the pharmacist is supplying a Schedule 3 poison—
(a) by wholesale to a person to whom such supply is specifically authorised by the Act or these Regulations; or
(b) in accordance with a prescription; or
(c) in accordance with a chart instruction.
That does mean that a pharmacist could not sell naloxone to an outreach worker or his or her employer unless the employer is ‘specifically authorised by the Act or these Regulations’ to purchase the drug and to allow the person to use it.
I should have addressed that but I was answering the question of whether or not they would be protected by good Samaritan legislation and addressing the question of legal liability in negligence if they carry, or don’t carry it and on the assumption that they would have lawful authority to have the drug in their possession and supply it to those in need. If they don’t have that authority the issue that was the subject of my answer is irrelevant. If they aren’t lawfully allowed to carry and supply the drug then there will be no issue of ‘will they be protected if they do use’ or ‘will they be liable if they don’t’ because in any case, they won‘t have, and can’t have, the drug to hand.
An interesting comparison is salbutamol and adrenaline which are also schedule 3 drugs. In the Australian Capital Territory there is specific authority for a person to administer to another person salbutamol and adrenaline where that person is in immediate need (Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) r 410). There is no equivalent provision for Naloxone. What r 410 tell us is that the legislator understood that without an exception, a person could not buy those schedule 3 drugs, ie salbutamol and adrenaline, to carry ‘just in case’. They can now, but they still can’t buy naloxone and supply it to a third party. That is interesting given the changes to the good Samaritan laws that say a drug affected person remains protected by the good Samaritan provisions if they administer naloxone, but it doesn’t give any permission to possess that drug. I anticipate that how that would work is that a person who is at risk of overdose could persuade a pharmacist that there’s a therapeutic need for it for themselves and therefore have it for their own use, but if someone else then needed it, they could use their drug on the other person (see Using someone else’s epipen (June 9, 2016) (https://emergencylaw.wordpress.com/2016/06/09/using-someone-elses-epipen/).
In Victoria I can find no equivalent to r 410 or any exemption for naloxone. So Tim’s right, “Without legislation specifically enabling workers to carry naloxone for this purpose, I’m not sure they are legally covered to carry naloxone at all”. However the question I was asked was predicated on the assumption that they had an authority to carry and supply the drug and so I did not address that issue.
To reiterate my conclusion, assuming the outreach workers have an authority to carry naloxone, it’s not the ‘good samaritan’ provisions that are relevant. Not getting it (and if that involves applying for an authority, getting that authority too) because of a fear that they won’t be protected by good Samaritan legislation is misplaced. Given the risk to their clients, if the staff have, or can obtain an authority to carry naloxone, failure to do so is more likely to lead to liability in negligence.