Today’s question revisits the issue of a paramedic’s authority to carry and use drugs. Today’s correspondent is:
… wondering where the legal authority comes from for a paramedic to obtain, store and administer medications and how the implementation of a drug protocol exists from a medico legal point of view.
I understand this response may vary from state to state, for the purposes of this response I’m not referring to a specific state, rather whichever state you’re most familiar.
1.1 Firstly, in the context of an ordinary paramedic … where does the authority to possess, store and administer medications (S4 & S8) come from in the context of state or private paramedic practice?
1.2 Is this authority independent or is it delegated from a medical officer employed by the organisation under their ’supervision’ (If so, in this context, does the CPM [Clinical Practice Manual?] or the employers ‘ATP’ process qualify as supervision?), the business as a entity it self through their medicines/poisons licence or is authority held by the individual paramedic?
1.3 If the latter how does this contrast with prescribing of a medication?
For the second part of my question, reading the recent judgement from ‘State of Queensland v Masson  HCA 28’ it makes note of the CPM at the time of the event was to provide guidance and “deviations from these guidelines will occur” as written in the CPM.
2.1 While I understand it is up to the individual employer to enforce adherence as they see fit and complications/decision can lead to civil legal ramifications (as seen with Ms. Masson), I’m curious as to if deviation with sound clinical judgement may have legal or registration consequences?
For example if a drug was given for a indication or a differing route of administration other listed in the CPM (but accepted in clinical literature and practice at the time of the event, for example Dexamethasone for nausea – Carried by many states but not indicated for such use).
2.2 Or in the eyes of the law is the CPM seen simply as a company policy with no bearing on the individual Paramedics registration unless negligence or a crime is demonstrated as a result?
2.3 Following back to the first question, if the authority to administer medications is indeed delegated by a medical officer does violation of the drug therapy portion of the CPM then mean the paramedic is practicing outside of the ‘supervision’ of the medical officer and does that then constitute possession/administration of a controlled substance without a doctors order?
(I added the numbers to the questions to make it easier to refer to the answers, below).
As my correspondent has noted a jurisdiction I’ll mostly refer to NSW. The answer is that the authority to carry drugs is set out in relevant state/territory poisons legislation. That legislation either provides an authority, or it says who can approve a person to carry drugs. What is really important to note is that a doctor, just because they are a doctor, cannot authorise someone else (paramedic or not) to possess drugs or supply and administer drugs to a person that the doctor has not consulted about. Paramedics cannot carry drugs as a doctor’s delegate – see Doctors delegating authority to carry drugs (August 20, 2014).
Let us look then at the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW). Appendix C of the Regulation sets out many authorities. For example cl 11 says:
A person who is trained and authorised to administer first aid at a mine (within the meaning of the Work Health and Safety (Mines) Act 2013) is authorised to possess and use methoxyflurane and nitrous oxide if required for use in connection with the carrying out of first aid at a mine.
Their authority is found in this regulation. When they complete the training they have the authority.
With respect to ambulance officers (not paramedics) the regulation says (Appendix C, cl 7):
(a) who is employed in the Ambulance Service of NSW as an ambulance officer or as an air ambulance flight nurse, and
(b) who is approved for the time being by the Director-General for the purposes of this clause,
is authorised to possess and use any Schedule 2, 3 or 4 substance that is approved by the Director-General for use by such persons in the carrying out of emergency medical treatment.
This is more complex; the person has to be employed by the Ambulance Service of NSW so the right does not come with a qualification. It is not a right vested in paramedics per se. The person has to be approved by the DG and can only carry those drugs approved by the DG (now the Health Secretary). For the right to carry and use schedule 8 drugs see r 101(g) which is in similar terms.
The Director-General can authorise ambulance officers to carry drugs because the Act and its regulations says that he or she can. It is not automatic and it does not depend on the DG or anyone else being a ‘doctor’.
So the answer to question 1.1 is that the authority is found in the state or territory poisons or drugs legislation.
The answer to question 1.2 is ‘it depends on what that legislation says’. Paramedics do have some independent authority (see for example Poisons Regulations 2018 (Tas) r 14; Medicines and Poisons Regulations 2016 (WA) Part 7, Division 9). In most cases the authority is given to the jurisdictional ambulance service to nominate who can use drugs and what drugs. For those who are not employed by jurisdictional ambulance services, the authority depends on the terms and conditions of any licence or authority obtained by their employer. (And I have argued elsewhere that it is my view that when poisons legislation gives paramedics the right to carry drugs necessary for their practice (as it does for medical practitioners) then that will be the true final step in making paramedicine a profession – see Paramedics becoming autonomous practitioners (September 3, 2020)).
As for question 1.3, prescribing medication is where a practitioner (doctor, dentist etc) writes a script that the patient then takes to the pharmacy and the pharmacist may, on the basis of the prescription, supply the drug to the patient. Carrying drugs in a kit, making an assessment of the patient and then supplying and perhaps administering the drug to them is not the same as writing a prescription to authorise someone who has not diagnosed the patient to issue a drug.
If we move onto the second part of the question, the decision in Queensland v Masson is discussed in my post High Court overturns finding of negligence against Queensland paramedic (August 13, 2020). Deviation from CPG’s based on ‘sound clinical judgement’ won’t have legal or registration consequences. Although that was not the issue in that case, the court did recognise:
The guidance in the CPM is posited upon the assumption that ambulance officers will exercise clinical judgment and that officers may depart from its guidelines where the departure is justified and is in the best interests of the patient.
The question for ‘registration’ (question 2.1) is whether the conduct or practice of a paramedic is below that expected by paramedic peers. What is a bigger risk is failing to deviate from a CPM where recommended treatment is not working and the paramedic has the knowledge and skills to help their patient – see Revisiting conflict between a paramedic’s skills and an employer’s duty statement (April 26, 2021).
The CPM (question 2.2) is part of the employment issue. An employee is required to obey the lawful and reasonable directions of their employer, but it does not necessarily determine good practice. As in Masson’s case, the CPM may be evidence of what can be expected from a paramedic but that does not mean that there could not be evidence to show why departure from the CPM was both indicated and reasonable. If there is a conflict between the CPM and good paramedic practice, then paramedics will be expected to exercise their professional judgement and provide patient centred, not employer centred, care – see the Paramedicine Board’s Code of Conduct.
Question 2.3 perhaps does not need an answer because ‘the authority to administer medications is [not] … delegated by a medical officer’ (with the exception of Paramedics do not practice under the supervision of a medical practitioner. They may have in the past (for those old enough to remember, think of the paramedics on squad 51 radioing Rampart Hospital for authority – Emergency (TV Show; 1972-1977)). That is not the case now. Doctors practice medicine, paramedics practice paramedicine. Paramedics are part of a separate profession with its own goals and standards – see again Paramedics becoming autonomous practitioners (September 3, 2020).
And to reiterate, doctors cannot authorise people to possess, supply or administer scheduled drugs ‘just in case’ (except in WA – Medicines and Poisons Act 2014 (WA) s 27). They can prescribe medication for a patient they have seen or consulted on, but they cannot say to someone ‘you can carry these drugs and if you decide someone needs the drugs then you can give it to them, and I’ll take responsibility’. Not only is that not permitted by law (WA excepted), it would be professional suicide for any doctor to pretend to authorise one person to treat another in the doctor’s name.
For a very large number of related posts, see:
- Doctors delegating authority to carry drugs (August 20, 2014);
- NSW Paramedics authority to carry drugs – NSW Ambulance and private providers (March 10, 2018);
- Administering drugs when paramedics are registered (October 3, 2018);
- Administering drugs when paramedics are registered – Queensland (October 17, 2018); and
- All the posts that appear here: https://emergencylaw.wordpress.com/page/2/?s=scheduled+drugs