Q&A with legal experts provides answers to key questions
July 1 marked a landmark day in Australia’s history for drugs in the workplace.
Why? In February this year, the Therapeutic Goods Administration (TGA) announced that they would reclassify MDMA and psilocybin.
And on July 1, these drugs moved from Schedule 9 (Prohibited Substances) to Schedule 8 (Controlled Drugs) meaning they are now able to be prescribed for the treatment of specific mental health conditions under the observation of licenced medical practitioners.
Who can prescribe Schedule 8 drugs?
MDMA may be prescribed for the treatment of post-traumatic stress disorder while psilocybin may be prescribed for treatment-resistant depression, according to Kelly Griffiths, partner, Gadens.
“For these specific uses, psilocybin and MDMA have been listed as Schedule 8 medicines in the Poisons Standard.”
However, a listing in Schedule 8 does not mean that these medicines will be generally available for prescribing by a general practitioner, she said.
“There are strict regulatory requirements that apply to the prescribing of these substances. Only a psychiatrist may prescribe these substances to a patient, and only if that psychiatrist is registered as an Authorised Prescriber under the TGA Authorised Prescriber Scheme.”
To be approved as an authorised prescriber, a psychiatrist must obtain approval from a human research ethics committee, Griffiths said.
“Due to the strict safeguards that are in place, the TGA are advising consumers that it may be some time before treating psychiatrists have the necessary approvals and supplies in place to commence using MDMA and psilocybin for treatment of these specific mental illnesses.”
What does the availability of MDMA mean for employers?
Employers have to walk a fine line between privacy and employment laws when it comes to knowing if an employee is taking prescribed medication.
“Employers need to balance their obligations to their employees such as their obligations arising under anti-discrimination and privacy laws against their obligations arising under occupational health and safety laws,” Griffiths said.
Employers should review their current policies and procedures to ensure that they have achieved an appropriate balance of their obligations, she said.
“The TGA has also committed to publishing updated guidance in July, which will further assist the sector to understand and comply with the restrictions that are in place.
“It is important to remember that the TGA have advised that they do not expect widespread prescribing of either MDMA or psilocybin, as the treatments are limited to use for specific mental health illnesses.”
But what impact will it have on an employee’s performance?
Like any other prescription medicine, there may be a risk that use of the therapy may impair an employee’s ability to perform certain tasks safely, Griffiths added.
“If a prescription-drug-related impairment poses a genuine risk to occupational health and safety, then it may be possible for an employer to compel disclosure via its workplace policies.”
There is no one-size-fits-all solution, she said.
“However, the guidance would differ based on the industry, the impact of the medication and an employee’s duties. Employers should obtain legal advice on the adequacy of their existing workplace policies in this regard, as this will need to be considered alongside obligations arising under anti-discrimination laws.”
Do employees need to tell their employer?
Privacy laws protect a lot of employee rights and unless the drug breaches an employer’s policies, affect an employee’s performance or goes against health and safety protocols, employees, on the whole, can keep any medication that they are taking private.
“Employers aren’t likely to see mass uptake of this treatment within their workplace, but they should be open to having conversations about mental health with their people,” Neil Helsby, co-founder of Canwell, said.
“Depending on the industry, some workplaces will require strict drug testing such as for operating heavy machinery, but for most, having an employee utilise these services is like an employee utilising any other type of mental health service - medication or therapy - and shouldn’t be stigmatised or handled differently.”
Unless a workplace has clear guidelines and regulations around drug testing and use, employees wouldn’t need to declare this - just as they wouldn’t need to declare using other medications such as SSRIs, he said.
“It will certainly depend on the industry and specific role, but this kind of treatment will often stay private between the patient and their health care provider. “
Prescribed medication for employees will always be a private issue, but employers will need to be aware that new health laws will change all the time and their policies will need to accommodate.
