Today’s correspondent has a regarding the transport of s4 and s8 drugs. They work:
… for a Private Ambulance Service which operates on a number of sites in NSW within a fairly close proximity, with one site being larger than the rest and which has a large clinic staffed with a Doctor and Nurse along with a paramedic. The current practice when the other clinics require S4 and S8 medications to replenish their stock is to place the S4 & S8’s in to a plain unmarked box and hand it to the bus driver (a contractor to the client) and have them transport the medications to the other sites. is this Legal for the bus driver to be delivering these scheduled medications?
Prescribed restricted substances
For the purpose of the Act and its Regulations, the term ‘prescribed restricted substance’ means the substances listed in Appendix D (Poisons and Therapeutic Goods Regulation 2008 (NSW)r 61).
A person does not commit an offence if he or she obtains possession of a prescribed restricted substance ‘for the purpose of delivering it: (a) to a medical practitioner, nurse practitioner, midwife practitioner, pharmacist, dentist, optometrist, podiatrist or veterinary practitioner…’ (Poisons and Therapeutic Goods Act 1966 (NSW) s 16(5)).
Regulation 64 of the Poisons and Therapeutic Goods Regulation 2008 (NSW)says (emphasis added):
A carrier is authorised to be in possession of a package containing a prescribed restricted substance, but for the purpose only of delivering it to the person to whom it is addressed.
Drugs of Addiction (s 8)
A carrier is also authorised ‘to be in possession of a package containing a drug of addiction, but for the purpose only of delivering it to the person to whom it is addressed’ (r 108). The term ‘drug of addiction’ means a drug listed in schedule 8 (Poisons and Therapeutic Goods Act 1966 (NSW) s 4). Drugs of addiction may also be sent by registered post (r 107). A schedule 8 drug must be (r 108(2)):
(a) … contained in a package that has at least one opaque covering, and
(c) the package contains a document–
(i) listing the contents of the package, and
(ii) bearing the words “SCHEDULE EIGHT–CHECK CAREFULLY” in bold face sans serif capital letters with a letter height of at least 12.5 millimetres, and
(d) the outside of the package does not indicate that it contains a drug of addiction, and
(e) the package is properly addressed to the person to whom the drug is being supplied.
The term ‘carrier’ is not defined but presumably the bus driver would fit that definition so can carry the drugs if they are s 8 or listed in Appendix D and are appropriately packaged.
Meaning of possession
There is an issue of what possession means. When looking at possession when it comes to prohibited drugs, the courts have said that a person can only be ‘in possession’ if they know they are in possession.
The words … “has in his possession ” – in their ordinary sense connote a state of mind, in particular some awareness of the existence of the thing that was in fact in the possessor’s physical control. (He Kaw Teh (1985) 157 CLR 523, (Gibbs CJ, ).
That may help explain why a s 8 drug has to be in a package that does not indicate what is in it. We would not expect a postal delivery worker would be guilty of possessing drugs or a firearm if someone posted them even though at some point the drugs or weapon are in the motorcycle saddlebags and so the postal worker has physical control over them. A South Australian Code of Practice for the Storage and Transport of Drugs of Dependence (2012) says, with respect to air transport ‘The contents of parcels must not be revealed unnecessarily to airline employees’. All of this is consistent with the idea that this ensures that the staff are not themselves ‘in possession’ of the items even if they are in possession of the package itself. If that analysis is correct, then it is arguable that putting drugs ‘in to a plain unmarked box and hand it to the bus driver’ without telling the driver what is in the package may be sufficient to mean the driver is not in possession of those drugs. That of course does not deal with whether the on-site pharmacist or health practitioner is meeting their obligation to secure the medication.
The Service’s drug authority
The final issue would be the terms of any authority that allows the ‘Private Ambulance Service’ to possess the drugs. The permit may allow the service, and anyone authorised by the service, to have the drugs in their possession so it may well be that the service is able to authorise the bus driver to be in possession for the purposes of the delivery between sites.
It’s impossible to answer the question without more details but I would suggest that it is probably lawful ‘to place the S4 & S8’s in to a plain unmarked box and hand it to the bus driver (a contractor to the client) and have them transport the medications to the other sites’. If the drugs are either a prescribed restricted substance or s 8,then it’s justified by the Poisons and Therapeutic Goods Regulation 2008 (NSW) rr 64 or 108 respectively. In other cases I would anticipate it’s covered by the relevant authority that a private ambulance company operates under.
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.