In response to my earlier post Use of methoxyflurane in first aid (March 11, 2019) my correspondent received advice from NSW Health. The advice was provided by a person from the Pharmaceutical Regulatory Unit of the Legal and Regulatory Services Branch. It is not clear if they have legal qualifications. The advice says:
In accordance with Appendix C clause 9 of the Poisons and Therapeutic Goods Regulation 2008 you are authorised to possess and use methoxyflurane and nitrous oxide in carrying out first aid, as it appears that occupational first Aid Certificate PUAEME005A covers the use of these products.
In addition I advise, that you understand that the substances can only be administered to people in a work situation where you have been engaged to treat an injury or at an event. These products cannot not be carried by you and administered as a first responder, for instance in a traffic accident situation or to a next door neighbour whose child has fallen out of a tree.
In my view that advice bears no relation to the law. As noted in the earlier post clause 9 of Appendix C to the Poisons and Therapeutic Goods Regulation 2008 (NSW) 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 rule of statutory interpretation is to read the words of the statute or regulation and give those words their ordinary meaning. Clause 9 does not say a person is authorised to carry methoxyflurane and nitrous oxide if they have completed training in the use of those drugs. If that is what the regulation meant, it is what it would say. Clause 13 does use that language It says (emphasis added):
13 ANAPHYLAXIS FIRST AID
A person is authorised to possess and use adrenaline if:
(a) if the person requires the adrenaline for use in connection with the carrying out of anaphylaxis first aid, and
(b) the adrenaline is contained in single use automatic injectors that have been filled by the manufacturer and that deliver no more than 0.3 milligrams of adrenaline each, and
(c) the person holds a current first aid certificate issued after completion of a first aid course approved by the WorkCover Authority as referred to in regulations made under the Occupational Health and Safety Act 2000, and the person has received training on the symptoms and first aid management of anaphylaxis from:
(i) a first aid training organisation approved by the WorkCover Authority, or
(ii) any other organisation approved by the Director-General for the purposes of clause 18 (5) (b) (ii) of this Regulation.
There is still the problem that the Occupational Health and Safety Act 2000 does not exist and SafeWork as the replacement to WorkCover is not in the business of approving certificates. Assuming that can be ignored the clause does at least refer to the candidate receiving ‘training on the symptoms and first aid management of anaphylaxis’.
It stands to reason that WorkCover would only have approved an occupational first aid certificate that provided appropriate training on the use of methoxyflurane and nitrous oxide, but it is still the case a) that clause 9 does not use that language and b) the requirement for authority under clause 9 (and 13) is that the certificate is approved.
Clause 9 does not say
A person is authorised to possess and use methoxyflurane and nitrous oxide if the person holds a current first aid certificate issued after completion of a first aid course and the person has received training on the symptoms and first aid management of pain and the use methoxyflurane and nitrous oxide is required in connection with the carrying out of first aid.
It does not say that but the author of the advice is assuming that it does say that. It may be reasonable for NSW Health to authorise the use of the drugs in those circumstances but clause 9 of Appendix C does not do that. One can’t read a regulation to say what you want it to say if that is not what it says.
Assume however, that the advice is correct and my correspondent is authorised by clause 9, then the NSW Health advice goes on to say:
In addition I advise, that you understand that the substances can only be administered to people in a work situation where you have been engaged to treat an injury or at an event. These products cannot not be carried by you and administered as a first responder, for instance in a traffic accident situation or to a next door neighbour whose child has fallen out of a tree.
There is nothing in clause 9 to impose that limitation. It says (if it says what the advice writer believes it says) that the holder of the certificate can carry the drugs ‘if required in connection with the carrying out of first aid’. There is no limitation on when or where that first aid may be administered.
Conclusion
In my opinion the advice from NSW Health is wrong. It bears no connection with Clause 9 of Appendix C of the Poisons and Therapeutic Goods Regulation 2008 (NSW). It may be what the regulator wants the regulation to say, but it is not what it says.
Given this advice is from the regulator the issue may be moot, if they think a person holding those drugs at work is lawful no-one will get prosecuted so the issue will not get tested. If, however a person were prosecuted for carrying and administering these drugs ‘as a first responder, for instance in a traffic accident situation or to a next door neighbour whose child has fallen out of a tree’ I for one would advise that person to contest that allegation.
In any event I am still of the opinion that
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.
Australian Emergency Law 
Considering that methoxyflurane is so fast acting, and out of the system in a very short time, unlike paracetamol, one would think that sanity and common sense would prevail and clear up this nonsense once and for all by making it acceptable for a suitably trained person to carry and use, providing that all people follow the protocol in a first aid situation that if the whistle comes out, the patient goes in…. (to an ambulance, or hospital at the least)….
Hi Michael,
Has there been any advancement on this topic over the last four years of note? A part three to this topic would be appreciated.
Thank you, Marc.
Matt, no the Regulation still says that 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.”
If we accept that any occupational first aid certificate (eg HLTSS00068 – Occupational First Aid Skill Set ) that covers these drugs is sufficient (and that may be a reasonable interpretation) then I still don’t see how ‘the substances can only be administered to people in a work situation where you have been engaged to treat an injury or at an event’. That is not what the Regulation says.
I have no idea what the Department’s current attitude to the Regulation is or why they don’t update it to reflect the way first aid training is now regulated as Vocational Training rather than by the non-existent WorkCover Authority.