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The problem is that the Occupational Health and Safety Act 2000 (NSW) has been repealed and replaced by the Work Health and Safety Act 2011 (NSW).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.
SafeWork NSW (https://www.safework.nsw.gov.au/safety-starts-here/safety-overview/first-aid-in-the-workplace) says:
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.
Conclusion
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.
Australian Emergency Law 
It appears the law is a long way behind the current best practice.
If one were to apply the simple “reasonable test” what would be the outcome? As an off duty paramedic I had cause to treat a 14YO footballer who had a dislocated knee cap, yes rather painful. It was my sons team mate. Obviously distressed and I was known to be a paramedic. I had Methoxy in my kit, an in date leftover from an industrial job I had completed.
My state Ambulance employer investigated and chastised me (without formally sanctioning me) for treating this child in pain!
The lads parents were grateful I was there and able to reduce his suffering some 15 minutes ahead of the ambulance arriving.
I would unreservedly do the same again. The benefit to the patient far outweighed the administrative consequences to me.
The intent of law is for safety and equity. Not to prolong suffering!
I never quite understand the comments about ‘the intent of law’. Law is a tool, like a hammer it has no ‘intent’ though people who write law may. Even so there is always a compromise otherwise the would just be ‘everyone must act fairly and with an aim to preserve safety’ and leave it to a court to decide what that means in any case. As an example of compromise is poisons legislation that says no-one is allowed to possess, supply or administer poisons (including methoxyflurane) without an approval.
Now your employer ‘investigating and chastising’ is not the same as the Dept of Health or police prosecuting. And maybe the employer was concerned that you still had scheduled drugs in your possession (particularly if they were the employer’s drugs) rather than having returned them. I have no doubt they did not investigate and chastise you for treating the patient, but for having drugs in your possession that you were probably not authorised to have.
I’ve drawn an analogy before with a hand gun. It may be illegal to possess one but that does not make it illegal to use your illegal hand gun in self defence if the circumstances warrant it. But I don’t think the law is behind current best practice – the law says if you want to use dangerous drugs the regulator needs to know that you are competent and the drugs accounted for so you need an authority (recognising that the terms of an authority for an S2 drug is very different to an S8 drug – see https://emergencylaw.wordpress.com/2019/09/29/the-last-word-on-scheduled-drugs/