A correspondent who read my post – Putting an asthma puffer or epipen in your first aid kit (November 10, 2024) has written:

I recently came across this document from the Victorian Department of Health: https://www.health.vic.gov.au/sites/default/files/2023-11/schedule-2-and-3-poisons-%28otc-medicines%29.docx

In it, it has this relevant section:

First Aid Kits and other Emergency Use

A pharmacist may supply a Schedule 3 poison (other than a drug of dependence) for use in a life threatening emergency where it is anticipated the end user may not be under the care of the pharmacist (regulation 141(1)(b)). This regulation enables supply of a Schedule 3 poison for inclusion in a first aid kit, e.g. in a school, workplace or other community organisation.

Examples of Schedule 3 poisons deemed relevant to treatment in a life threatening emergency are epinephrine (EpiPen®) for treatment of anaphylaxis, salbutamol for treatment of asthma and other breathing problems, and naloxone for opioid overdose.

Note: This provision does not authorise pharmacists to supply Schedule 3 poisons, by wholesale, to manufacturers or wholesale suppliers of first aid kits.

The regulation says:

A pharmacist must not sell, supply or administer a Schedule 3 poison … unless that poison is not a drug of dependence and it is sold or supplied (other than by wholesale) for the purposes of first aid treatment of any person in a life-threatening emergency.

Link to the regulation in question: https://classic.austlii.edu.au/au/legis/vic/consol_reg/dpacsr2017531/s141.html

From my reading of that, it suggests that it would be legal for one to carry a salbutamol puffer or Epipen in their first aid kit.

This seems to be different from what you have stated in your blog post

I was wondering if I am interrupting this correctly?

Let me first admit that my analysis is very technical, but from a pragmatic point of view I’m sure no-one cares if a first aider has a salbutamol puffer or Epipen in their kit.  But from a strict reading of the law this doesn’t change my position. 

The Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) r 5 picks up the definition of first aid that is found in the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic) s 3, which is ‘aid of a medical nature provided to a person experiencing sudden illness or injury’.

Regulation 141(1)(b) allows a retail pharmacist to sell a schedule 3 drug to a person ‘for the purposes of first aid treatment of any person in a life-threatening emergency’ but there has to be a corresponding right in the person who buys it to possess or supply or administer the drug to the person in need.

We can see that r 133E(2) says ‘A person who holds a first aid service licence is authorised to obtain through wholesale supply, and to possess, a Schedule 3 poison for the purpose of providing first aid services under the licence.’ 

If anyone could ‘possess, a Schedule 3 poison for the purpose of providing first aid’ then s 133E would only need to authorise the wholesale, as opposed to retail, purchase.  In fact Part 2 of the regulation (regulations 133D to 147) are all about who can possess and supply schedule 3 drugs. What’s missing, as we see in some jurisdictions, is a provision that says something along the lines that a person who has completed an approved first aid course that includes training in the treatment of anaphylaxis or asthma is authorised to possess and supply the drug.

I also note that r 141(2) continues to apply and it says ‘… a pharmacist must not sell, supply or administer a Schedule 3 poison unless the pharmacist has taken all reasonable steps to ensure a therapeutic need exists for that poison.’   A person could argue that there is likely to be a therapeutic need if they have done a risk assessment and determined that it is likely that someone might need these drugs (so relevant in a ‘school, workplace or other community organisation’).  There would be a clear need if the purchaser could say ‘I have person ‘x’ in my group who we know is asthmatic or allergic to …’.

Regulation 141 however imposes obligations on the pharmacist not the buyer.  What offence does a person commit if they have in their possession a schedule 3 drug?  The answer to that is not clear.  The Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 46 says (emphasis added):

… every person who—

(a) contravenes or fails to comply with any of the provisions of this Part; …

(c) purchases or obtains any poison or controlled substance and gives false information in answer to inquiries required by or under this Act to be made by the seller or supplier; …

shall be guilty of an offence against this Act.

A person who buys a schedule 3 drug for their first aid kit but gives honest answers to any questions does not breach s 46(c).  The question is whether have possession of a poison or controlled substance without an authorisation is a contravention of the Act.  Section 13 sets out in detail who is authorised to possess the drugs but there is no explicit prohibition on possessing schedule 2 or 3 drugs without an authorisation.  There is a prohibition on the unauthorised possession of schedule 4, 8 and 9 drugs in s 36B(2).

If we look at the Department of Health document that I have been referred to, it is headed ‘Schedule 2 and 3 poisons (OTC medicines): Requirements for health practitioners’.  Under the heading ‘First Aid Kits and other Emergency Use’ it says (emphasis added):

A pharmacist may supply a Schedule 3 poison (other than a drug of dependence) for use in a life threatening emergency where it is anticipated the end user may not be under the care of the pharmacist (regulation 141(1)(b)). This regulation enables supply of a Schedule 3 poison for inclusion in a first aid kit, e.g. in a school, workplace or other community organisation.

Examples of Schedule 3 poisons deemed relevant to treatment in a life threatening emergency are epinephrine (EpiPen®) for treatment of anaphylaxis, salbutamol for treatment of asthma and other breathing problems, and naloxone for opioid overdose.

It is not clear who has ‘deemed’ some drugs relevant to the treatment in a life threatening emergency or why that is relevant. The section allows the sale of any schedule 3 drug ‘for the purposes of first aid treatment of any person in a life-threatening emergency’.  It does not say the drug has to be approved or authorised by some central authority.  Further, although a pharmacist is required to personally deliver the drug to the buyer and to give instructions as to its use there is no requirement that the person buying the drug has any training in its use. 

Finally if it is intended that anyone can buy naloxone to put in their kit, why is it necessary to have regulations 133F, G and H to authorise various people to have and administer naloxone?

Conclusion

I think the intention is that people can buy an epi-pen, salbutamol or naloxone to put in their kit but as a lawyer I prefer not to take legal advice from the executive arm of government.   The law says that a pharmacist can sell the drug but there are detailed lists of who can possess those drugs.  Certainly the holder of a first aid licence and authorised naloxone workers can possess schedule 3 drugs and naloxone respectively.  If anyone could buy those drugs there would be no need for those regulations.  There would be no need to authorise the holder of a first aid licence to possess schedule 3 drugs if anyone can buy them to put them in a first aid kit.

Having said that it is not clear if anyone who possess a schedule 3 drug commits an offence unless it can be argued that their possession is a contravention of the Act that does detail who can be in possession.  Further, if the executive arm of government (ie the Department of Health) think r 141(b) does authorise anyone to buy and possess ‘epinephrine (EpiPen®) for treatment of anaphylaxis, salbutamol for treatment of asthma and other breathing problems, and naloxone for opioid overdose’ then they are not going to take any sort of action against someone who is in possession.  That may be a de facto (in fact) authorisation if not a de jure (in law) authorisation.

It is my view that r 141(b) along with r 141(2) means a pharmacist could sell a schedule 3 drug to a person who can establish a clinical need (eg I am a school teacher and we’re taking a student on an overnight excursion and we know this student has asthma or anaphylaxis) but it still does not authorise anyone to possess a schedule 3 drug just because it may come in handy one day. If that is intended, then many of the regulations in Part 2 are unnecessary.  Whilst I think the department recognises the value of allowing that but to do so the regulations should provide an explicit authorisation as has been done in the ACT, NSW and Queensland.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.