Today’s question comes from a person
… qualified in occupational First Aid Skill set and provide pain management (penthrox and Paracetamol) I was wondering in what setting I am allowed to carry Penthrox? I would ideally like to have this as part of my cars first-aid kit. is this legal? Can I use it in a general first aid environment?
(“Methoxyflurane, marketed as Penthrox among others, is an inhaled medication primarily used to improve pain following trauma.”)
Appendix C to the Poisons and Therapeutic Goods Regulation 2008 (NSW) sets out various exemptions and authorities for drugs. Clause 9 says:
9 GENERAL FIRST AID
A person who holds a current occupational first-aid certificate approved by the WorkCover Authority in accordance with the regulations under the Occupational Health and Safety Act 2000 is authorised to possess and use methoxyflurane and nitrous oxide if required in connection with the carrying out of first aid.
The problem is that the Occupational Health and Safety Act 2000 (NSW) has been repealed and replaced by the Work Health and Safety Act 2011 (NSW). The Occupational Health and Safety Regulation 2001 (NSW) r 20 referred to first aid certificates approved by WorkCover. There are no such provisions in the 2011 Act or the Work Health and Safety Regulation 2017 (NSW). It follows that it is simply unclear who, if anyone, is authorised by cl 9.
In 2018, Safe Work Australia amended their model Code of Practice: First Aid in the Workplace, bringing significant changes to what emergency medication/s can be stored in workplace first aid kits. SafeWork NSW supports these changes and recommends workplaces review their first aid needs and what medication/s may be required so that workers with medical conditions such as asthma or allergies have access to immediate care and treatment…
Asthma-relieving inhalers and spacer devices can now be included in workplace first-aid kits where required…
Epinephrine auto-injectors (commonly called epi-pens) to treat anaphylaxis and severe allergies can also now be included in workplace first aid kits where required…
However ‘To have legal effect in a jurisdiction, the model Code of Practice must be approved as a code of practice in that jurisdiction’ (SafeWork Australia, Model Code of Practice: First aid in the workplace https://www.safeworkaustralia.gov.au/doc/model-code-practice-first-aid-workplace; see also Work Health and Safety Act 2011 (NSW) s 274). The NSW regulator (SafeWork NSW) lists as its code of practice the First aid in the workplace code of practice (July 2015). In short changes to the model code of practice are not law in NSW even if SafeWork NSW supports them, unless and until the amendments are adopted as law in New South Wales. Further the 2018 model code of practice says:
However, workplaces may consider including an asthma-relieving inhaler and a spacer to treat asthma attacks and epinephrine auto-injector for the treatment of anaphylaxis or severe allergies. These should be stored according to the manufacturers’ instructions and first aiders should be provided with appropriate training.
Even if that was adopted in New South Wales it would not be an authority under the Poisons and Therapeutic Goods Regulation 2008 (NSW).
The problem that I have is r 170 which says ‘The Director-General may issue authorities for the purposes of the Act and this Regulation.’ The Director-General may have issued some general authority to allow people with certain qualifications to use methoxyflurane. The problem is that, unlike authorities given in Appendix C, authorities issued by the Director-General are not publicly available, so I don’t know what authorities have been issued or to whom.
I cannot see any current authority to allow a person with an occupational first aid certificate to carry methoxyflurane even though that authority did exist prior to the implementation of the Work Health and Safety Act 2011 (NSW) and the 2017 regulations. As currently advised a person qualified in methoxyflurane cannot actually carry and use those drugs.
I would welcome any advice from anyone who can point to some relevant authority to the contrary.