Children, Youth and Families Act 2005
Section 184 of the Children, Youth and Families Act 2005 makes it mandatory for a nurse or
medical practitioner to report any reasonable suspicion of child abuse or abandonment to the
DHS.
The penalty for not doing so is 10 penalty units. However, it is a defence to this charge if the
nurse or medical practitioner honestly and reasonably believed that the concern had already
been reported by another person.
Drugs, Poisons and Controlled Substances Act 1981
The Drugs, Poisons and Controlled Substances
Act 1981, amongst other things, regulates the
supply, prescription, administration and storage of certain categories of drugs. Different types
of drugs are classified under different Schedules contained in the Commonwealth 'Standard for
the Uniform Scheduling of Drugs and Poisons' referred to in the Act.
Schedule 4 poisons are prescription only medicines, for example cardiovascular drugs,
antibiotics, nitrous oxide and many others.
Schedule 8 poisons are drugs with stricter legislative controls, for example cocaine, morphine,
pethidine, oxycodone, methadone, hydromorphone, flunitrazepam, fentanyl, ketamine.
Schedule 9 poisons are also drugs of abuse.
A nurse, other than a nurse who is endorsed on the Register as a nurse practitioner, is not
authorised to supply any Schedule 4 or 8 poisons, which means he or she cannot supply a
patient with medication from the hospital or health service ward stock. Other than a nurse
practitioner, only a pharmacist or medical practitioner can do this.
Some examples of this Act which may be relevant to emergency presentations are as follows.
Section 33 requires a nurse practitioner or a medical practitioner who has reason to believe that
a patient is a drug-dependent person to report this to the DHS.
Section 35 prohibits a medical practitioner or nurse practitioner to administer, supply or
prescribe a Schedule 8 or 9 poison to a patient who they believe is a drug-dependent person
unless they hold a permit issued by the Secretary. It also prohibits a nurse or medical
practitioner to administer, supply or prescribe these poisons for a continuous period greater
than 8 weeks without a permit.
The penalty for breaching either of these prohibitions is 100
penalty units.
A health care professional who does not comply with the Act or Regulations may also face
disciplinary action before the relevant Board and a finding of unprofessional conduct.109
Drugs, Poisons and Controlled Substances Regulations 2006
The Drugs, Poisons and Controlled Substances Regulations 2006 is a statutory instrument to
the Drugs, Poisons and Controlled Substances Act 1981. It regulates, amongst other things,
the supply, prescription and administration of drugs, poisons and controlled substances by
health professionals, amongst other people. It contains restrictions and obligations which must
109 Medical Practitioners Board of Victoria, Re Robert Geza Padanyi [2006] MPBV 13
54
be complied with; persons who fail to comply with these restrictions and obligations will incur a
fine.
A nurse, other than a nurse practitioner, is not authorised to prescribe schedule 4 and schedule
8 poisons. However, nurses are authorised to possess S4 and S8 poisons for administration
purposes.
A Health Services Permit will have been issued to the hospital or health service. This
authorises the hospital or health service to possess Schedule 4 and Schedule 8 poisons for the
provision of health services and imposes certain conditions, including conditions which specify
what health professional is authorised to administer Schedule 4 and Schedule 8 poisons. The
authorisation to generate the standing orders described above will be contained in the Health
Services Permit.
Under the Drugs, Poisons and Controlled Substances Regulations 2006 a nurse can only
administer Schedule 4 or 8 poisons if he or she acts on or in accordance with110:
x the written instruction of a medical practitioner;
x the oral instruction of a medical practitioner if, in the opinion of the medical
practitioner an emergency exists (e.g. telephone orders);
x the written transcription of emergency oral instructions by the nurse who received
those instructions;
x the directions for use on a container supplies by a medical practitioner or pharmacist
(e.g. the administration of a person's own lawfully prescribed medication);
x standing orders (in specified emergency situations) where approval to generate
standing orders had been given via the conditions on the hospital's or health service's
Health Services Permit.
The penalty for breach is 100 penalty points.
Registered nurses also should check whether any hospital or health service protocols are in
place which authorise them to administer specified unscheduled medications, or schedule 2 or
schedule 3 poisons.
This is a matter of hospital or health service policy.111
Regulations 8(2) and 9(2) in Division 2 of the Drugs, Poisons and Controlled Substances
Regulations 2006 prohibit the administration, prescription, sale or supply of Schedule 4 poisons
by a medical practitioner or nurse practitioner unless:
x that poison is for the medical treatment of a person under his or her care; and
x he or she has taken all 'reasonable steps' to ensure a therapeutic need exists for that
drug or poison.
110 Drugs, Poisons and Controlled Substances Regulations 2006, Regulation 47
111 Key Requirements for Nurses in Acute Care Facilities. http://www.health.vic.gov.au/dpu/
downloads/summary_for_nurses_acutecare.pdf
55
The penalty for a breach of this regulation is 100 penalty units.
'Reasonable steps' to ensure a therapeutic need exists for that drug or poison would include the
following:112
x taking a medical and medication history;
x examining the patient;
x taking into account the presenting symptoms or described condition;
x taking into consideration any past or current drug therapy;
x taking into account any signs of misuse or abuse of medicines/drugs;
x considering the suitability of the substance to be prescribed or administered for the
treatment of the presenting symptoms or described condition;
x considering the potential for the misuse or abuse of the substance to be prescribed or
administered;
x confirming the patient's story by contacting purported previous prescribers or supplier.
The concern raised is that this regulation may restrict the giving of phone orders by a doctor 'for
a patient who is not his or her patient and who has presented to the ED for treatment' - for
example, where antibiotics are required and a nurse obtains a phone order from the duty doctor
who is not the child's regular GP, and the duty doctor orders an antibiotic for the child but does
not come and see the child.
There is no definition of the term 'under his or her care' in the Act or the Regulations, and it is
really a matter of how this should be interpreted. Arguably, a duty doctor assumes the care of
any patient who presents for emergency services when he or she is called upon to give advice;
certainly at law, he or she will be deemed to owe a duty of care to those patients. Indeed, the
practice of providing telephone orders occurs in any large hospital or health service where there
is a ward medical officer attending patients after hours who are not under his or her ongoing
care.
The Victorian Government has provided the following examples of what would be considered
unacceptable practice:
x anabolic steroids for bodybuilding purposes or to enhance sporting performance;
x stimulants merely to enhance wakefulness in long distance drivers;
x for persons who are not under their care, e.g. a person resident in another country
who has not consulted the doctor in question.113
112 Guide to the Drugs, Poisons and Controlled Substances Regulations 2006 at http://www.health.
vic.gov.au/dpu/downloads/guide-dpusr-06.pdf
113 http://www.health.vic.gov.au/dpu/downloads/reqmed.pdf
56
It would seem, therefore, that the purpose of these regulations is to prohibit prescription of
medicines for non-medical reasons, and prescription of medications to people whose care the
doctor has not actually been involved with. In the context of emergency presentations where
the duty doctor is called, the doctor has been consulted, albeit by the nurse, and therefore is
involved in the patient's care. It is unlikely that the regulation was intended to restrict the
prescription of medications to circumstances where there is an ongoing relationship between
the doctor and patient.
The practice to be adopted in relation to the provision of emergency
services, and indeed already widely adopted in many hospitals and health services, is unlikely
to be considered to be in breach of this regulation.
A more difficult problem is found in regulation 47, which provides that Schedule 4 and 8 poisons
may be administered by a nurse on the oral instructions of a registered medical practitioner if an
emergency exists. The Regulations do not define 'emergency' and one argument is that
presentations such as ear infections do not represent emergencies (in that they are not a
serious and imminent threat to life or health) which would justify oral orders under the
regulations. However, to apply a narrow definition of 'emergency' would defeat the purpose of
the pilot, which aims to reduce demands on rural doctors. It could be argued that any patient
who presents for an emergency service, particularly after hours, may be regarded as an
emergency, in a broad sense of the word.
It must be emphasised that Regulation 47(4) requires a medical practitioner who has issued
oral instructions for a nurse to administer a Schedule 4 or 8 poison to, as soon as practicable,
confirm those oral instructions in writing and include them or provide them for inclusion in the
treatment records of the person concerned. The penalty for failing to do so is 100 penalty
points.
