A correspondent asks if I know

… of any broader law that would regulate the items used by event health service providers in terms of expiry in Victoria?

We often use items that are past their manufactures expiry, usually things that are not intended to be sterile as such for example bandages, Band-Aids and slings.

It’s not clear whether my correspondent works for a paid or volunteer organisation but even if there is only one employee, it is a workplace and there is a duty to ensure that people, including non-employees, are not affected by the work (Occupational Health and Safety Act 2004 (Vic) s 23).   In order to provide ‘practical guidance’ on compliance with the Act, the Minister may approve compliance codes (s 149).  There is a compliance code on First Aid in the Workplace (2008). That Code doesn’t say anything about expiry dates, it does however say (at [55]) ‘Employers need to ensure that first aid kits are restocked as necessary’.  What constitutes ‘necessary’ is not defined.   The compliance codes are not binding (“A failure to comply with a compliance code does not give rise to any civil or criminal liability” (s 150)) they are, as they say, ‘practical guidance’.

SafeWork Australia, ‘a partnership of governments, employers and employees, … [that] drives national policy development on work health and safety and workers’ compensation matters’ has developed a ‘First Aid in The Workplace Code of Practice (2016). The Code of Practice says (p 10):

A person in the workplace should be nominated to maintain the first aid kit (usually a first aider) and should:…

  • ensure that items are in good working order, have not deteriorated and are within their expiry dates and that sterile products are sealed and have not been tampered with.

Compliance with the Code of Practice isn’t mandatory but adherence to a code of practice may be set up as evidence of reasonable conduct in response to any claim of negligence or to demonstrate compliance with any relevant Occupational, or Work Health and Safety duty.

A search of other websites doesn’t reveal direction to any particular law.  There is a binding standard for “Information requirements – date marking of food for sale”, but that is clearly not relevant to medication or bandages. (One wonders how a ‘sling’ could go past its use by date but I suppose the material may degrade so that the manufacturer can no longer be sure it will actually support the person’s arm as intended.)

Other question and answer sites don’t point to any law: See

With respect to pharmaceutical an article in Australian Prescriber (Michael Dawson, ‘Expiry datesAust Prescr 1994;17:46-8) says:

If the pH of eye drops and other preparations for application to mucous membranes, or injectables, falls outside a fairly narrow range, pain and perhaps tissue damage may result. Similarly, the rate and extent of absorption may be affected by changes in the dissolution rates of tablets and capsules and the particle size of creams, oral suspensions and aerosols.

We are therefore at the position where the non-binding compliance code First Aid in the Workplace (2008) doesn’t refer to expiry dates.  The non-binding First Aid in The Workplace Code of Practice (2016) does however say that these should be attended to. Other sites say it’s a matter of risk assessment.   Because the various codes are non-binding I would agree that ultimately it’s a matter of risk assessment.  The greater the risk the more attention needs to be paid so anything that is going to be taken, or put on exposed wounds or mucous membranes is a greater risk than say a triangular bandage that is going to be used as a sling.  A wound dressing that has been kept well stored may be OK compared to one that’s been bouncing around in the boot of a car.   And what a person might keep in the boot of their car may be quite different to what a service that is offering to provide professional first aid care may choose to keep.

In terms of legal issues one has to question how it could be relevant?  It may be; if you pull out a clearly dirty and very old wound dressing and the patient develops sepsis that may raise the question of the quality of care.  And if you use out of date eyedrops and the patient develops pain or tissue damage that may also be an issue.  But using a well-kept triangular bandage as a sling is hardly like to be an issue and even if the sling fails, the chances of anyone attributing that to an out of date bandage is unlikely.

Conclusion

Assuming that the agency my correspondent comes from is a ‘workplace’ (ie it employs someone) then there is a duty to ensure ‘that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ and the conduct of the employer, if it provides first aid services, would include the equipment used to provide that service. If the use of out of date material exposes others to a risk then that risk needs to be ameliorated.

If the equipment poses no or little risk, then it’s use may be OK.  But one has to assume that the expiry date on saline, sterile dressings, medication and the like mean something.    A person may choose to keep out of date material in their private first aid kit but it would seem like less than good practice to do so if you are actually a first aid service provider.    To support that proposition the most relevant broader law that I can think of is the Occupational Health and Safety Act 2004 (Vic) but consistent with that Act, the issue is one for a considered risk assessment.