My correspondent writes:

My query is not in relation to emergency services per se, but what I would consider a related topic; the possession and use of scheduled analgesic medications in the civil workplace.

Under the legislation such as the Poisons Regulations 2008 (Tas) Division 5A, a “responsible officer” at a workplace may – without further qualification – obtain, possess, and supply methoxyflurane (s 62C) or nitrous oxide (s 62B) to an appropriately credentialed first aid officer. A first aid officer may supply that substance to a patient for self-administration. There is no is no specification under this section that requires a workplace be considered high-risk, or to be of a certain size, or to be part of a particular industry.

I have not been able to locate any criteria which would exclude any workplace from being authorised to obtain, possess, and supply methoxyflurane. Under relevant Acts and Regulations in Tasmania and their equivalents in other States, does anything prevent the average Vinnies op shop, Woolies, or local bowls club from acquiring methoxyflurane or nitrous oxide?

There also does not seem to be legislated or regulated requirements regarding the carriage of methoxyflurane or nitrous oxide outside the workplace, or an obligation for the qualified first aider to be within their workplace to administer the drug. Is there anything that would prevent, for example, a sports club first aid officer travelling to an away game from stopping at a roadside vehicle crash and administering methoxyflurane to a patient in significant pain?

According to s 62A, a ‘responsible officer’ is a person appointed under s 10 of the Workplace Health and Safety Act 1995 (Tas).  Unfortunately the Workplace Health and Safety Act 1995 (Tas) has been repealed and replace by the Work Health and Safety Act 2012 (Tas).   One could infer that a person who was appointed under s 10 retains their appointment, but no new ‘responsible officer’ can be appointed.

Section 10 of the Workplace Health and Safety Act 1995 (Tas) used to say:

An employer is to appoint a responsible officer for each workplace at which the employer carries on business.

If an employer did not appoint a responsible officer then ‘the person responsible for the direction and management of the business’ was deemed to be the responsible officer.   It follows that every employer had a responsible officer.  It’s true therefore that every employer, no matter the size so including ‘the average Vinnies op shop, Woolies, or local bowls club’ could acquire methoxyflurane and nitrous oxide.

So what happens now that there is no s 10 of the Workplace Health and Safety Act 1995 (Tas)?  Today no responsible officer can be appointed under s 10 so it would seem regulations 62B(1) and 62C(1) have no role to play.

In both cases, however, sub-regulation 2 says:

A first aid officer who has a current certificate in the use of nitrous oxide (S4) [r 62B; or methoxyflurane, r 62C] granted by a registered training organisation may – (a) possess nitrous oxide (S4)[or methoxyflurane] and…

may supply it to a person for self-administration on the oral direction of a doctor or the written direction of a doctor or a paramedic.  In an emergency they may supply it for self- administration with no authority of a doctor or paramedic.

The Work Health and Safety Regulation 2012 (Tas) r 42 imposes a duty on a person conducting a business or undertaking (a PCBU) to ensure that arrangements are made for the provision of first aid at the workplace.  This includes ensuring ‘an adequate number of workers are trained to administer  first aid  at the workplace’ (reg 42(2)(a)).

The Poisons Regulations 2008 (Tas) defines a first aid officer as ‘a person who has a current certificate for the provision of first aid in a workplace granted by a registered training organisation’ (r 62A).   A person trained to administer first aid in the workplace (assuming their certificate was issued by an RTO) must therefore be a ‘first aid officer’ for the purposes of the poisons regulation.  If they also hold a certificate in the use of nitrous oxide and/or methoxyflurane they would be entitled to possess and use the drugs in accordance with regulations 62B and 62C.

It’s true that regulations 62B(1) and 62C(1) both refer to a ‘responsible officer’ obtaining and possessing the drugs, whereas in both cases sub-regualtion 2 only refers to a first aid officer possessing the drugs; that is it does not say a first aid officer may ‘obtain’ the drugs.    But if a person ‘possesses’ something, they must have obtained it. I would suggest that it must be inferred that the right to possess something must include the right to obtain it (see also the discussion on regulations 62D and 62E, below).    What the first aid officer can’t do, but the ‘responsible officer’ can do, is supply it someone else for them to use.  That is the responsible officer can supply the drug to the first aid officer for the first aid officer to later use it with a patient.  The first aid officer cannot supply it to someone else for them to deliver to a patient in due course.

To address the first point, my correspondent writes:

I have not been able to locate any criteria which would exclude any workplace from being authorised to obtain, possess, and supply methoxyflurane … does anything prevent the average Vinnies op shop, Woolies, or local bowls club from acquiring methoxyflurane or nitrous oxide?

The answer to that is ‘no’; the fact that regulations 62B(1) and 62C(1) have no work to do would stop appropriately qualified workplace first aiders from accessing and using these drugs.  There is no limitation on the size of the workplace.  The workplace has to do a risk assessment to determine its first aid needs (Work Health and Safety Regulation 2012 (Tas) r 42(3)).   Having done that if they determine they need first aiders to have access to nitrous oxide or methoxyflurane then they would arrange for them to get the appropriate qualifications and the first aiders could then purchase the drugs from an appropriate licensed supplier and use them in accordance with regulations 62B(2) and 62C(2).

My correspondent’s next point is:

There also does not seem to be legislated or regulated requirements regarding the carriage of methoxyflurane or nitrous oxide outside the workplace, or an obligation for the qualified first aider to be within their workplace to administer the drug

It’s true that there is no explicit restriction though one could be inferred.  Both regulations refer to a ‘responsible officer at a workplace’ and so refer back to the Workplace Health and Safety Act 1995 (Tas).  Although the heading of a section does not, in Tasmania, form part of the Act (Acts Interpretation Act 1931 (Tas) s 6(4)) there is judicial authority to the effect that the headings can be relied upon to help determine the intended meaning of the section (D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, Lexis/Nexis, 2014), 203-204; see also Acts Interpretation Act 1931 (Tas) s 8B). In this case both sections are headed ‘Possession, supply and administration of nitrous oxide [(s62b); and methoxyflurane (s 62C)] at workplace’.   Taken together it could be inferred that there has to be a link to the workers duties and the workplace.  It could be inferred, depending on the persons duties, that taking the drugs home and keeping them in the first aid kit in the car, is not possessing them as part of their duties and therefore not permitted.

There could be exceptions to this and the obvious one is where the employee’s duties require him or her to travel. My correspondent gave the example of ‘a sports club first aid officer travelling to an away game’.  Travelling to provide first aid at the away game is providing first aid ‘at work’ or ‘at the workplace’ so that person must be entitled to be in possession of the drugs during the travel time.

The use of nitrous oxide and methoxyflurane by ‘relevant persons’.

In my first answer I did say I thought that the reference to the old Workplace Health and Safety Act 1995 made no practical difference because of regulations 62D and 62E.

Regulation 62D says that a ‘relevant person who has a current certificate in the use of nitrous oxide (S4)’ may obtain and possess nitrous oxide and supply it to a person for self-administration on the oral direction of a doctor or the written direction of a doctor or a paramedic.  In an emergency they may supply it for self- administration with no authority of a doctor or paramedic.  Regulation 62E is in the same terms and applies to the possession and use of methoxyflurane.

My correspondent has pointed out that ‘relevant person’ is defined to mean (in regulation 62A):

(a) a St John Ambulance member, while he or she is acting in accordance with an agreement by St John Ambulance to provide its services at a particular event or location; or

(b) a member of the Ben Lomond Ski Patrol, or the Mt Mawson Ski Patrol, while he or she is registered with, and acting as part of, that ski patrol;

My correspondent argues:

The regulation actually places further restriction on the authority granted to members of St John Ambulance by specifying that the definition applies only “while he or she is acting in accordance with an agreement by St John Ambulance to provide its services at a particular event or location.” I find this qualifier itself to be interesting in its interpretation. In respect of the original question it would appear to mean that a workplace first aid officer in legitimate possession of methoxyflurane could administer the substance without restriction, whereas a St John Ambulance member (with potentially greater training and experience) could not.

It follows that an appropriately qualified member of St John Ambulance or one of the ski patrols whilst on duty, may possess (and therefore must be able to obtain) and administer these drugs.   I can imagine that the ski patrol has a place on the slopes where drugs can be stored when not in use.  The St John Ambulance on the other hand, provides its services at various events and locations.  Accordingly it has to be implied that the authority to possess the drugs applies not only when the member is on duty, but also when he or she is travelling to and from the duty, and depending on the way the issue is managed, it may extend to keeping the drugs at home ready for the next duty.   To comply with the regulation the ideal situation would be to have a ‘drug kit’ that is with the member only when he or she is travelling to or from, or is at the relevant duty.  It would not be kept in their personal first aid kit in the car.

So what happens if a St John member or a workplace first aid officer, both lawfully in possession if nitrous oxide and/or methoxyflurane come across a car accident and wish to administer the relevant drug to ‘a patient in significant pain’.  On one view they would be in breach of the regulation as the administration is not related to their duty at work or ‘in accordance with an agreement by St John Ambulance to provide its services at a particular event or location’.

I can’t for a moment believe anyone would accept that.  This discussion has occurred in previous contexts about doctors, paramedics and nurses using their skills away from work.  In this context there is a person who needs pain relief, another person trained to administer pain relief with the necessary drugs to hand.  In terms of providing care one has to act in the best interests of the patient.  If one failed to do so for fear of some technical breach of these regulations that would not be acting in good faith.  I’m sure a judge would be able to find that it was an implied term of one’s employment as a first aid officer who was required to travel, or an implied term of the agreement to provide first aid services, that the member will stop whilst proceeding to the duty or the workplace to provide first aid if required.

Equally there is a doctrine of necessity.  I have talked about that previously in relation to the treatment of those that cannot give consent but it is a defence of broader application.  In Pommell v R [1995] EWCA Crim 7 the Court of Appeal of England and Wales (Criminal Division) said:

… the argument that a person ought to be permitted to breach the letter of the criminal law in order to prevent a greater evil befalling himself or others has long been recognised (see, for example, Stephen’s Digest of Criminal Law)…

The court accepted that the defence ‘… appears to be general, applying to all crimes except murder, attempted murder and some forms of treason’.  The elements of the defence, according to Australia’s High Court in R v Rogers (1996) 86 A Crim R 542 are:

  1. ‘the seriousness of the evil which the appellant claimed to be seeking to avoid’;
  2. ‘the immediacy or imminence of the peril’; and
  3. ‘the proportionality or reasonableness of the response’.

In the circumstances described there is a patient in ‘significant pain’.   Presumably pain itself is not life threatening but pain relief can go a long way to mitigating a patient’s condition.  The immediacy of the peril (the pain) is obvious.  The issue of proportionality involves a potential breach of a poisons regulation by a person trained and equipped to administer appropriate pain relief but who might be in breach because they are not at work or on duty.   I don’t think any judge would have any difficulty finding the decision to administer the drug was reasonable and proportional.

In terms of negligence law, it could not be negligent for a work place first aider, a St John member or ski patrol member not to have the drugs with them when they are not at work or on duty.  With respect to workplace first aiders that restriction can be implied, for the others it is explicit. In my view, however, it could be negligent if one does have the drugs not to use them in circumstances where there use is warranted.   That’s not to say it would be; but it could be.  There would be an issue that failure to administer pain relief would not make the persons condition worse; it may not make it better but it would not make it worse and that is fundamentally what the duty of care requires.

Conclusion

My conclusions are:

  • There is no criteria which would exclude any workplace from being authorised to possess, and supply methoxyflurane or nitrous oxide.
  • There does appear to be some limitations on when the qualified person can possess and use these drugs.
    1. For an employee the provision is limited to the use of the drugs in relation to their duties at work. This limitation is not set out in the Act but is implied by the terms of the Act.
    2. For a member of the St John Ambulance or relevant ski patrol, they should only be in possession of the drugs when on duty or travelling to and from the duty.
  • There is nothing to stop ‘a sports club first aid officer travelling to an away game’ or an appropriately qualified St John or Ski Patrol member stopping at a roadside vehicle crash and administering methoxyflurane or nitrous oxide to a patient in significant pain’. Such an action should be permitted and encouraged because if the person has the training, and has the drugs at hand, they should be delivered to a person who needs them.   Anything less would be unethical and possibly negligent.