Today’s correspondent is a volunteer with an ambulance service in Western Australia.   My correspondent is trained and authorised to use some schedule 2, 3 and 4 drugs in the course of his volunteering.  My correspondent wants to know if it is permissible to carry schedule 3 drugs in a private first aid kit.  I am told:

My training authorises me to use some S2/S3/S4 medications with a scope of practice. However, I would like to know if I can be legally sued for one particular medication that falls under S3. We use epipens in the volunteer service. Outside the service, Adrenaline ampules are available over the counter. The autoinjectors are extremely expensive and expire within a matter of months dependent on storage, and the chance of use is low.

However, I would like to carry adrenaline for anaphylaxis and severe bronchospasm only, not for use in cardiac arrest as this does not fall in my scope. If I were to use the ampules (which requires me drawing up the medications in a needle and administered into a muscle) to rectify a life threatening issue.

I would not be willing to branch into the areas of S4 due to requirements for prescription and the chances of use being low for their specific purposes. Most of the S3 medications that I would consider using are life saving, for example salbutamol (for asthma). Naloxone is also another one I would consider carrying as there is now a push for this to be carried by the layperson.

I came across this article while reading through your blog: Good Samaritan legislation and scope of practice (March 27, 2015).

For clarification – the carrying of S3 medicines will be outside of my service – eg in the back of my car with a personal kit.

Schedule 3 medications are defined in the Poisons Standard June 2018 (made under the Therapeutic Goods Act 1989 (Cth)) as:

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.

There are 10 Schedules in the Poisons Standard (though Schedule 1 is ‘intentionally blank’).

The Medicines and Poisons Regulations 2016 (WA) r 62 authorises paramedics to carry scheduled drugs.  The term paramedic is defined to mean ‘a person employed by the holder of a health service permit to provide ambulance or paramedic services’ (r 37).  As my correspondent is not ‘employed’ the authority vested in volunteers must be subject to the relevant health services permit issued to the ambulance service for which my correspondent volunteers.

Without going into details I infer that carriage in a private car is not endorsed on the ambulance service permit, hence my correspondents reference to my earlier post –  Good Samaritan legislation and scope of practice (March 27, 2015).  I infer that perhaps it is hoped to rely on the good Samaritan legislation (Civil Liability Act 2002 (WA) Part 1D) to authorise carrying these drugs.

For persons without relevant authority (and I infer that includes my correspondent when off duty) the Medicine and Poisons Act 2014 (WA) s 13 says, relevantly:

(1)         A person who … supplies a Schedule 2 or 3 poison commits an offence unless —

(a)         the person does so —

(i)         under and in accordance with an appropriate licence or a professional authority; and

(ii)         in accordance with the regulations; or

(b)         the person does so in accordance with subsection (2) or (3).

(2)         A person may supply a Schedule 2 or 3 poison to another person (the patient) if —

(a)         the person reasonably believes that the use by the patient of the poison would be appropriate for therapeutic purposes; and

(b)         the amount of the poison supplied is reasonable in the circumstances; and

(c)         the person reasonably believes that the patient will use the poison for therapeutic purposes.

(3)         A person may supply a Schedule 2 or 3 poison to another person (an agent ) if —

(a)    the person supplies the poison to the agent for the purpose of it being supplied or administered to another person or to an animal (the patient ); and

(b)         the person reasonably believes that the use by the patient, or the administration to the patient, of the poison would be appropriate for therapeutic purposes; and

(c)         the amount of the poison supplied is reasonable in the circumstances; and

(d)         the person reasonably believes that —

(i)         the agent will —

(I)         supply or administer the poison to the patient; or

(II)         supply the poison to another person for the purpose of it being supplied or administered to the patient;

and

(ii)         the poison will be used by, or administered to, the patient for therapeutic purposes.

Section 8 says:

For the purposes of this Act a person is taken to supply a poison if the person does any of the following — … (c) has possession of the poison for the purpose of supplying it.

What follows from that is that if my correspondent has purchased the drugs and put then in a kit for the purpose of using them should the need arises, then he or she ‘has possession of the poison for the purpose of supplying it’ and is therefore guilty of the offence under s 13(1). The maximum penalty is a fine of $30 000 (s 115).

My correspondent may want to rely on s 13(2).  That may be a defence if and when the drugs are actually administered but that doesn’t authorise obtaining the drugs ‘just in case’.   I would suggest that clause is there so people can share their drugs eg if I lawfully have the drug in my possession and someone else needs it I can give it to them even though I’m not a pharmacist.

Clause 13(3) allows a person to buy drugs for someone else so a person can go to the pharmacist and buy a schedule 3 drug for their family member.  In that case the person buying the drug can receive advice and give the drug to the person in need. Critically both ss 13(2) and (3) refer to the ‘patient’ that is a person who currently needs the drugs for therapeutic purposes.  Again s 13(3) does not authorise the purchase of drugs ‘just in case’.

The good Samaritan provisions of the Civil Liability Act 2002 (WA) may protect my correspondent from liability if he or she used the drugs when assisting a patient in actual need, but it would not be a defence to being in possession of the scheduled drugs ‘just in case’.   Further by definition the Civil Liability Act 2002 (WA) deals with civil liability, not criminal liability and possession of schedule 3 drugs is a criminal offence.

The whole basis of the scheduling of poisons, and then the extensive legislation in each state and territory is to restrict the supply of those drugs.  Schedule 3 drugs are to be supplied by a pharmacist.  They may not need a prescription but it requires professional advice.  A person cannot just buy schedule 3 drugs and then supply them to others.

The matter is further complicated by the fact that naloxone is a schedule 3 drug and has been placed there so people can obtain it to treat drug overdoses – see Department of Health – WA Lifesaving medicine now available over the counterSee also Simon R Lenton, Paul M Dietze and Marianne Jauncey, ‘Australia reschedules naloxone for opioid overdose‘ Med J Aust 2016; 204 (4): 146-147 (doi: 10.5694/mja15.01181)).  Lenton et al conclude:

While OTC [over-the-counter] access removes the need for a doctor’s prescription, the requirement for dispensing by a doctor or pharmacist remains…

We recommend that the rescheduling of naloxone be followed by regulatory changes that allow current THN [take-home naloxone] programs to dispense naloxone directly to their clients for later use in an overdose situation.

Rescheduling the drug does not get past provisions such as s 13(1).  It may be that pharmacists supply naloxone to drug users so that it is available to treat their drug overdose and if having obtained it they then use it on someone else that’s fine (s 13(2)).  

What can’t be lawful (as it would defeat the point of the scheduling system and s 13(1)) is to go to a pharmacist and buy a supply of scheduled drugs to create one’s own drug kit and then use them when the purchaser sees fit.  The point of scheduling medications is to protect people from harm and to restrict the supply of dangerous drugs.  The person who needs advice from the pharmacist is the very person for whom the drugs are intended or a person who is going to give the drugs to the person who needs them now.

The difference is in intention.  If I buy the drug for me or for someone else who currently needs it, that is with the intention of using it for an identified ‘patient’.  If I buy it not for me but for an unidentified potential patient the pharmacist can’t give me advice as the pharmacist can’t know, nor can I, which patient I will use it for.   If people want to carry drugs, including Schedule 3 drugs, ‘just in case’ then they need an authority or permit.

My correspondent’s authority comes via the ambulance service for which they volunteer.  If my correspondent could lawfully carry drugs outside that authority, then authorities issued to the ambulance service would be unnecessary.

Conclusion

My correspondent has asked the wrong question. I was asked ‘can [I] be legally sued…?’  To be sued is to be sued in a civil case for the use of the drugs.  It is unlawful to carry a concealed hand gun but it may not be illegal to use that handgun in self defence.  Equally, here, it may be unlawful to carry the drugs but that may not make it unlawful to use them if there is a patient who needs them.  My correspondent may be sued if it is alleged that the use of the drugs in a particular case was not a reasonable response and caused damage.  On the other hand if it was a reasonable response the fact that the drugs will illegally in their possession will be irrelevant.  In that case my correspondent may be able to rely on the Civil Liability Act and s 13(2) of the Medicine and Poisons Act 2014 (WA).

That however is not the issue.  Buying the drugs in order to put them in a first aid kit because it may be useful one day for a yet unidentified patient is to acquire restricted substances for the purpose of supply and that is a criminal offence.  The Civil Liability Act won’t help there.

See also Restricted drugs in the church first aid kit? (August 22, 2017)