Need for Good Samaritan Bill Emphasised in Dáil Debate
On 6th December 2005 a debate took place on the need for a ‘Good Samaritan’ Bill, to protect from penalty those who come to the aid of another in an emergency.
The following speech was made by Fine Gael Defence Spokesman Billy Timmins TD, in proposing such a bill in Dáil Éireann on Tuesday 6th December 2005.
“The purpose of the Good Samaritan Bill 2005 is to protect from liability those who go to the assistance of others who may be ill or injured as a result of an accident or other emergency. This legislation will ensure that those who intervene to give help to others, and who offer this assistance in good faith, cannot then be penalised or held liable as a result of their intervention.
“Health care professionals, acting in the course of their employment, are exempted from the terms of this legislation. Section 1 deals with the title of the Bill. Section 2 lays down to whom the Bill is applicable and outlines a defence for damages unless these damages are caused by gross negligence or a health care professional acting in the course of employment.
“This is a simple and practicable Bill; it requires no funding or other resources. It does afford a protection to all citizens who wish to render assistance to their neighbour in danger. There are three areas open for consideration when considering the legal concept of the Good Samaritan:
1. The legal duty of a citizen to assist someone in need;
2. The compensation for loss or injury, or the rights of a Good Samaritan;
3. The liability or risk assumed by a Good Samaritan.
“The Bill deals with the latter consideration, and I believe it is a good first step. When I raised this issue in the past I was informed that it was covered by the Common Law. The Common Law has several different meanings but it is usually used to refer to the law as developed by the judges since the Norman Conquest. It was a combination of the best of all the local systems of law made ‘common’ to the entire country by William I and succeeding Kings of England.
“The Normans sought to centralise and regularise government. Gradually central courts expanded and replaced local ones. In deciding cases judges were asked by lawyers to consider earlier judicial decisions. As the pace of social change quickened the development of law based solely on judicial decisions became inadequate.
“The need for legislation became increasingly necessary and over time statute law became more important than judicial decisions, as the common law became rigid and fixed and there were many wrongs for which there was no remedy. The main advantage in passing this Bill is that it will be easily accessible and ready for immediate use, especially when there is no case law and it will also be authoritative, having been passed by the legislature.
“One may ask: if there has never been a case concerning this issue, why bring an unnecessary solution forward? I am firmly of the view that the absence of such legislation is prohibiting the involvement of volunteers in some projects and most definitely the rollout of Defibrillators in the community. Just last night Mr Joe Galvin, the Cardiac Specialist, outlined on Leargas the need for such equipment to be available. We are all familiar with the tragic story of Cormac McAnallen, but there are many tragic stories out there that could have been avoided if we developed this concept.
“In addition, there is no modern decision refusing a cause of action in respect of which there was no existing authority on the ground that it was new. Torts have been developed over the centuries and it would be wrong to suppose that the process has come to an end. Historically the origins of many torts lie in particular decisions. It was as far back as the middle of the 19th Century that one finds the origins of inducement of breach of contract in Lumley V Gye (1853). In Britain the Tort of negligence was first established in the historic case of Donoghue V Stevenson (1932). It was only as recent as 1964 that the Tort of intimidation was definitely established, in the same country.
“In this country, if there is no existing duty, eg employer/employee, then the general principle is that there is no liability for a mere omission to act. There is no legal obligation to warn someone who is about to walk into a trap or to rescue him from a dangerous situation when he has done so. However, if one does intervene and adds to the damage, we do not yet know in this country if they will be liable. The result of all this may be that the Good Samaritan who tries to help may find himself or herself involved in damages while the Priest and Levite who pass by on the other side can go on their merry way.
“This Bill can give protection and has been shown to do so in various incidences of case law in the US.
“In Boccasile V Cajun Music Ltd (Rhode Island 1997): A man suffered an allergic reaction to food he consumed at a music festival. A volunteer medical crew in the First Aid Tent at the festival provided assistance, but the man died. His family sued the First Aid Crew. The Court found that under the Good Samaritan Act, the family had the duty to come forward with standard of care evidence and affidavits establishing deviations from normal care, or some expert attribution of a connection between negligence and the man’s death. No such evidence was submitted and so the volunteer medical crew could not be found liable.
“In Pamberton V Dharmaii (Michigan 1994): In a malpractice case, the Court found that a physician who in good faith responds to a life threatening emergency or responds to a request for emergency assistance in a life threatening emergency within a hospital is not liable for any civil damages as a result of an act or omission in the rendering of emergency care, except an act or omission amounting to gross negligence or wilful and wanton misconduct. For immunity to apply, the physician need only have a good faith belief that he is responding to a life threatening emergency regardless of whether such an emergency actually exists.
“There is a legal maxim of Volenti Non Fit Injuria, roughly construed to mean no injury is done to one who consents. It had its origin in the process by which Roman law validated the Act of a free citizen selling himself into slavery. In the 19th Century it found its way into the law of Tort. The principle is that a person may not sue in Tort if he had given his express or implied consent to the Act complained of. In many of the situations I envisage that this legislation may be of use, consent may not be possible due to the condition of the injured party. Indeed even knowledge may not be possible, however knowledge is not consent.
“The Biblical parable of the priest, the Levite and the Good Samaritan is often used to teach the virtue of helping someone in need. There is a desire in virtually all of us to help someone whom we perceive to be in immediate danger; this can range from saving someone from drowning to helping with the change of a car tyre. However, with the evolution of society this desire now takes other issues into consideration. How often do we read about someone who stops to render roadside assistance ending up as the victim of a mugging? Concern is also expressed, particularly by Health Care Professionals, that if they seek to voluntarily assist someone who is injured and add to that injury they may be the subject of a claim for damages. I am not aware of any case in this jurisdiction where such a claim has been made and some may argue that this Bill is premature.
“The primary motivation for this Bill is to assist in encouraging the availability of Defibrillators in the community, through sporting clubs, commercial outlets, schools and any location where large crowds are likely to gather. For the last couple of years I have been involved in trying to expand this concept in such areas, but the fear of litigation, whether justified or not, has acted as a barrier. This simple piece of legislation can address this problem. We need to ensure that the virtue of the Good Samaritan concept carries over to our legal system.
“While the original motivation for this Bill was to deal with sudden cardiac arrest, there are several other important aspects to it. It frees up the medical professional whose concerns about intervention can be reduced, the mountain rescuer and the voluntary searcher can now know that there is legislation in place that can assist them if the need arises and most importantly it paints a clear picture of a society that wishes to protect people who wish to assist those in danger.
“The Good Samaritan issue is not a concept that has been discussed in this country, mainly because it hasn’t arisen in any real tangible form. The claim cannot be made that the door is being closed after the horse has bolted as Fine Gael, by bringing forward this proposal, intends to assist in the development of volunteerism.
“The issue has arisen in other countries (USA, Canada). As a general principle Common Law does not require a bystander to help someone in danger, the priest and the Levite would not be liable for failing to assist the stranger. However, several exceptions exist where failure to act could lead to a damage or criminal liability. A ‘special relationship’ may give rise to a duty to assist – an employer and an employee, the nature of one’s employment, Policeman – Fireman.
“However, a bystander is safe as long as he or she does absolutely nothing. If the bystander chooses to intervene and adds to the injury, it is my firm belief that sometime in the future we will see a claim for damages arise in our legal system. There is a strong tendency in our courts that someone picks up the cost for injury to a person and the passing of this Bill should lessen the chances that the willing bystander is that someone. It is not uncommon to have statutory modifications to the Common Law – (Child Welfare Legislation). In Quebec, Canada, the law imposes a duty on everyone to help a person in peril.
“The duty to assist a person in danger is evolving in France and Belgium. When Princess Diana’s vehicle crashed in France, before medical help arrived for her and her companions, photographers who had arrived at the scene allegedly took photographs of her instead of rendering assistance to the injured parties. As a result several photographers were investigated for possibly violating, among other things, the Good Samaritan Law in France, which requires that onlookers lend aid to victims in peril. This Bill does not go as far as the French situation and the Princess Diana case is in stark contrast to the infamous 1964 case of Kitty Genovese, an American who was stalked and repeatedly stabbed by an assailant in middle class New York. Although 38 neighbours either heard or saw her being attacked, no one came to her aid or even called the police until over half an hour after her attack, by which time she was dead. No one was investigated or prosecuted for failing to help, because it was not a crime in New York. One has to ask which is the better social model and, while Minister McDowell may argue that inequality is necessary to drive the economy, what philosophy can say no to a Good Samaritan Law?
“The French law with respect to omissions started to take its present shape in 1941 under the Vichy Government and it was codified after 1945 in Articles 62 and 63 of the French Penal Code, Modern French Law has implemented these articles. The American system pales in comparison to the French, but yet the American one is so far ahead of us. This Bill affords us an opportunity to catch up.
“Ireland, it is said, is one of the most litigious societies in the world, second only to the United States of America in this ranking. Without doubt, this is a very dubious accolade, and presents us with many problems that we cannot ignore.
“These days, how do we ensure that our legal system does not act as a disincentive to people from getting involved in voluntary work to the benefit of their communities, and society as a whole? And, how do we ensure that a person who gives of their time to assist, for example, with a volunteer cardiac response unit is not left without legal protection?
“One of the current phrases, used repeatedly by this Government, is ‘social capital’. The decline in what is referred to as ‘social capital’ has been frequently lamented by the Taoiseach, and is a phenomenon witnessed by all of us in the new more prosperous Ireland of the 21st century.
“The concept of ‘social capital’ recognises that social networks have value. The term ‘social capital’ encapsulates within it a wide variety of specific benefits that flow to society from a situation where people are empowered to engage with community and society, to work together, to build trust and valuable relationships, and all for the common good. In this way, ‘social capital’ is not just a woolly, ‘feel good’, concept: it has tangible benefits to people and families and there are tangible actions that we should take to protect it.
“Whilst speaking of the general importance of promoting social capital, the Government has not taken any concrete action to match their words. Plaudits given to those who volunteer to serve communities are all well and good, but don’t actually address the specific difficulties that are faced in the Ireland of 2005.
“We must acknowledge that social capital cannot be supported by words alone. Action is needed from the Government, and I have identified an area where we can support social capital and social engagement through legislation.
“Under our current legal situation, if a person goes to the assistance of someone ill or injured as a result of an accident they have no protection in legislation if something goes wrong. Even if this person has acted quickly, compassionately, and with the best motives, they have no protection from legal action.
“This is a serious problem for those who work with voluntary organisations, as well as individual members of the public who may go to the assistance of an injured person. Off-duty healthcare workers may be worried about the consequences of offering assistance to an injured person. People who would like to volunteer with cardiac self-help groups may be discouraged, and members of sporting bodies may find themselves in a legal limbo.
“Volunteers are recognised as unsung heroes, from the medic dashing onto the remote football pitch to the off-duty nurse attending to a collapsed elderly person on the side of the road. The service is almost always free of charge, the only gain being one of personal satisfaction. Non-profit organisations are rarely sued and as I have previously stated I am not aware of any volunteer who has been. But yet the litigation perception and the real lack of protection for volunteers has acted as a barrier to the involvement of volunteers. In the US in 1997 Congress passed the Volunteer Protection Act to deal with this issue.
“I now wish to return to the original motivation for the Bill. Cardiac Self Help Wicklow is a voluntary group that set up in the autumn of 2003 with a view to making defibrillators available in the wider community. Every year several thousand people die in Ireland from Sudden Cardiac Arrest.
“There are many causes, genetics, illness, heart attack, environmental conditions and even physical contact. A hard blow to the chest can knock someone, even a fit young athlete, into cardiac arrest. Dehydration or heat exertion can do the same. Anyone at any age can be a victim of Sudden Cardiac Arrest. We spend much time in here maligning various failures in the Health Service. However I want to acknowledge the excellent work of the Ambulance Service of the HSE in the Eastern Region.
“Thanks to the Ambulance Service working with voluntary groups in the Wicklow Area we now have almost 20 areas up and running with what’s called a ‘First Responders Scheme’, this comprises of trained local volunteers who assist the Ambulance Service if someone in the area suffers or is threatened with cardiac arrest. Currently several other communities are in the process of setting up and it is our intention, with the co-operation of communities, to extend this service countywide. In addition local groups, schools, etc can privately purchase a defibrillator and have it available in their own immediate area. This is known as targeted defibrillation. Some shopping centres, airports, schools and sporting clubs have these on site and have trained people in their use.
“The scheme in Wicklow went operational in spring of this year and to date there have been over 60 occasions when the local community groups have been called upon. The scheme is extremely successful and provides assistance and assurance particularly in areas of isolation. I am aware that a Government task force, chaired by Dr Brian Maurer has reported on ‘Sudden Cardiac Death’ and I am confident that he will strongly recommend a roll out of the First Responders Scheme similar to the one in operation in Wicklow.
“The resources needed to set up and maintain the scheme are minimal for the return. However, human resources will have to be specifically allocated to the project. The Gardaí, Fire Brigades and other statutory bodies can also play a role. Planning guidelines need to be amended to provide for the inclusion of defibrillators in commercial developments. The Department of Education has a role to play in including CPR in the school curriculum.
“To assist in the concept of targeted defibrillation legislation will be necessary to deal with the concerns of volunteers who have a fear of litigation. This is such a Bill. The Minister for Health repeatedly calls for ideas from this side of the House. Well here’s one and its implementation will greatly improve our health service and at a nominal cost.”
