Today’s correspondent asks
… in Western Australia does a person with appropriate pre-hospital care training such as a first-aider or paramedic acting in good faith act reasonably according to law if they come across a situation in public whilst not at work where someone they determined to be in a life-threatening (anaphylaxis) and whilst at that situation another person volunteers an EpiPen that is in its packaging and in-date administers the EpiPen to the person in the life-threatening situation out of the principal of necessity?
I think I have largely answered that question in the post Using someone else’s EpiPen (June 9, 2016) but I’ll do it again with specific reference to WA legislation.
The simple answer is yes, a person who is trained to recognise anaphylaxis and to use an EpiPen is acting lawfully if they use someone else’s EpiPen in circumstances where they believe its use is indicated.
An EpiPen is a schedule 3 drug. In this situation we have three people
- Person 1) the owner of the EpiPen – the supplier;
- Person 2) the first-aider or paramedic who administers the drug; and
- Person 3) the patient.
Medicines and Poisons Act 2014 (WA)
A paramedic is authorised to supply schedule 3 drugs and to administer, possess and supply schedule 4 or 8 drugs provided they do so in accordance with a relevant structured administration and supply arrangement (Medicines and Poisons Act 2014 (WA) s 25 and Medicines and Poisons Regulations 2016 (WA) r 62). Given in our scenario the first-aider or paramedic are ‘off duty’ I’m going to assume that r 62 does not apply.
The Western Australia Department of Health says (Requirements of the Medicines and Poisons Legislation: a summary for public health service facilities (2020) at [8]):
The Medicines and Poisons Legislation is silent about who can administer doses of Schedule 2 and Schedule 3 medicines. These medicines are packaged and labelled in a manner which includes directions and warnings to allow a consumer to safely self-administer doses.
Further (at [5]):
There are no possession offences relating to Schedule 2 and Schedule 3 medicines: these medicines are primarily subject to supply controls.
The Medicines and Poisons Act 2014 (WA) s 8 defines ‘supply’ as ‘to supply the poison, or a substance that contains the poison, to another person, but does not include administering a poison or substance directly to another person’. Section 13 says:
(1) A person who … supplies a Schedule … 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 … 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.
What section 13 tells us is that if Person 1 gives their EpiPen to either Person 2 or the patient it is an offence (s 1) unless ss 2 or 3 apply. Section 2 is relevant if Person 1 gives their EpiPen directly to the patient. Given they believe the patient needs it, and the dose they are giving is the dose in the EpiPen then we can conclude s 13(2) would ensure that Person 1’s action is legal.
If Person 1 gives the EpiPen to person 2 (the first aider or paramedic) who in this context is ‘the agent’ to administer to the patient then subsection 3 also provides the relevant defence. So person 1 does nothing wrong when they volunteer their EpiPen to be used for the benefit of the patient.
If person 2 gives the EpiPen to the patient, then again s 13(2) provides the necessary legal authority. If Person 2 actually injects the patient with the EpiPen then they have administered the drug. As noted legislation does not provide an offence of administering a schedule 3 drug.
Conclusion 1
The first conclusion is that neither Person 1 nor Person 2 in our scenario commits an offence under the Medicines and Poisons Act 2014 (WA) by giving Person 1’s EpiPen to the patient or injecting the Patient with the EpiPen in the circumstances described.
Good Samaritan legislation
The Civil Liability Act 2002 (WA) s 5AD(1) says:
A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.
A good Samaritan is (s 5AB) ‘a natural person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’. In the circumstances described the off duty first-aider or paramedic would be a good Samaritan as would person 1 who volunteers their EpiPen.
Given that they believe that the person requires the EpiPen they are acting in good faith and would enjoy the protection of this section should there be adverse consequences.
Conclusion
In Western Australia a person with appropriate pre-hospital care training such as a first-aider or paramedic who comes across a situation whilst not at work where they believe a person is suffering from life-threatening (anaphylaxis) does not act contrary to law if they use an EpiPen, volunteered by another person volunteers to treat the life threatening emergency. Such conduct is not only not prohibited by the Medicines and Poisons Act 2014, it is specifically authorised by that Act, and is encouraged by the Civil Liability Act 2002.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 