I move: "That the Bill be now read a Second Time."
I wish to share time with Deputies Crawford, Deenihan, Perry and Connaughton.
Vol. 611 No. 4
I move: "That the Bill be now read a Second Time."
I wish to share time with Deputies Crawford, Deenihan, Perry and Connaughton.
Is that agreed? Agreed.
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 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 practical Bill, requiring no funding or other resources. It affords 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: the legal duty of a citizen to assist a person in need, the compensation for loss or injury, or the rights of a good samaritan and the liability or risk assumed by a good samaritan.
The Bill deals with the latter consideration. I believe it is a good first step. When I raised this issue in the past I was informed it was covered by common law. 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 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 roll-out of defibrillators in the community. Only last night Mr. Joe Galvin, the cardiac specialist, outlined on "Léargas" the need for such equipment to be available. We are all familiar with the tragic story of the late Cormac McAnallen, but there are many tragic stories that could have been avoided if this concept was developed.
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. As far back as the middle of the 19th century 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 as recently as 1932. It was only in 1964 that the tort of intimidation was definitely established in the same country.
In this country, if there is no existing duty, for example, between an employer and 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 Ireland 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 case law in the US. In Boccasile v. Cajun Music Limited 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. Dharmani, in a malpractice case in Michigan in 1994, 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 even 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 has 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. Even knowledge may not be possible. However knowledge in itself 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 a person whom we perceive to be in immediate danger. This can range from saving a person from drowning to helping with the change of a car tyre. However, with the evolution of society this desire takes other issues into consideration. How often have we read about someone who stopped to render roadside assistance and ended up as the victim of a mugging? Concern has also been expressed, particularly by health care professionals, that if they seek to voluntarily assist a person 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 legislation can address this problem. We need to ensure 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 know that legislation is in place that can assist them if the need arises and most important 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 widely in Ireland, mainly because it has not arisen in any tangible form. The claim, often made, that the door was closed after the horse had bolted cannot be made in this case as Fine Gael, by bringing forward this Bill, intends to assist in the development of volunteerism.
The issue has arisen in other countries. 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 damage or criminality. A special relationship may give rise to a duty to assist, such as an employer and an employee, which I previously mentioned, or the nature of one's employment, such as a policeman or fireman.
However, a bystander is safe as long as he or she does absolutely nothing. It is my firm belief that some time in the future we will see in our legal system a claim for damages where a bystander chooses to intervene and adds to the injury. Our courts have a strong tendency to ensure that someone picks up the cost for injury to a person. Passing this Bill should lessen the chances of the willing bystander being that someone. It is not uncommon to have statutory modifications to the common law.
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 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 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 law 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 more than 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 must ask which is the better social model. While the Minister for Justice, Equality and Law Reform, Deputy McDowell, may argue that inequality is necessary to drive the economy, what philosophy can refuse a good samaritan law.
The French law with respect to omissions started to take its present shape in 1941 under the Vichy Government, and was codified after 1945 in Articles 62 and 63 of the French Penal Code. Modern French law implemented these articles. The American system pales in comparison to that of France, yet it is far ahead of ours. 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. 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 to get involved in voluntary work to the benefit of their communities and society as a whole? How do we ensure that a person who gives of their time to assist with a volunteer cardiac response unit is not left without legal protection?
One of the phrases used repeatedly by the Government is "social capital". The decline in what is referred to as "social capital" is 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 and the term encapsulates within it a wide variety of specific benefits that flow to society 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 for people and families and there are tangible actions we should take to protect it.
While speaking of the general importance of promoting social capital, the Government has not taken concrete action to match those words. Plaudits given to those who volunteer to serve communities are all well and good, but they do not address the specific difficulties 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 identified an area where we can support social capital and social engagement through legislation.
Under our legal system, if a person goes to the assistance of someone who is ill or injured as a result of an accident they have no protection in legislation if something goes wrong. Even if this person acted quickly, compassionately and with the best motives, he or she has 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 health care 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 on to the remote football pitch to the off-duty nurse attending a collapsed elderly person on the side of the road. This service is almost always free of charge, the only gain being one of personal satisfaction. Non-profit organisations are rarely sued — as I stated, I am not aware of any volunteer who has been sued in this country. However, the litigation perception and the 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 established 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 the victim of sudden cardiac arrest. We spend much time here maligning various failures in the health service. However, this evening I want to acknowledge the excellent work of the ambulance service under Pat McCreanor in the HSE eastern region and the excellent work it has done in recent years. I also acknowledge its training officer Shane Mooney.
Thanks to the ambulance service working with voluntary groups in County Wicklow, a first responders scheme is up and running in approximately 20 areas. This comprises trained local volunteers who assist the ambulance service if someone in the area suffers or is threatened with cardiac arrest. Several other communities are in the process of setting up a scheme and it is our intention, with the co-operation of communities, to extend this service throughout the country. In addition, local groups and schools can privately purchase a defibrillator and have it available in their immediate area. This is known as targeted defibrillation. Some shopping centres, airports, schools and sports clubs have these on site and have trained people in their use. The scheme in Wicklow went into operation in spring of this year and to date local community groups have been called upon on more than 60 occasions. The scheme is extremely successful and provides assistance and assurance, particularly for those who reside in isolated areas.
I am aware that a Government task force, chaired by Dr. Brian Maurer, reported on sudden cardiac death and I am confident he will strongly recommend a roll-out of a first responders scheme similar to the one in operation in Wicklow. I hope he will also make a recommendation similar to the Good Samaritan Bill.
The resources needed to establish and maintain the scheme are minimal for the return. However, human resources must be specifically allocated to the project. The Garda Síochána, fire brigades and other statutory bodies can also play a role. I welcome the fact that the Garda Síochána operated two pilot schemes in Kilkenny and Blanchardstown and I look forward to their roll-out throughout the country. Planning guidelines must be amended to provide for the inclusion of defibrillators in commercial developments. The Department of Education and Science 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 and Children repeatedly calls for ideas from this side of the House. Here is one, and its implementation will greatly improve our health service at virtually zero cost. We must establish legislative intent such as that "an automatic external defibrillator may be used by any person for the purpose of saving the life of another person in cardiac arrest".
Tomorrow, the Government of which the Minister is a member will swagger in here and spend the people's money like a child that has raided the piggy bank. It is relatively easy to do. How the Minister approaches this Bill will tell me a lot more about how the Government views society than what is done tomorrow. In his capacity as Minister for Justice, Equality and Law Reform, the Minister has a vital role to play with respect to this Bill. I hope he will adopt a positive and progressive approach. He can play the part of Santa Claus to the many volunteers and would-be volunteers or he can be the cold icy face of an administration that is more concerned with adding the half pence to the pence and placing the rare penny in the old man's hat.
I do not know if the Minister has made up his mind to accept this Bill. I ask him, based on what I stated and what my colleagues will say, to give serious consideration to accepting it. It would cost nothing and people would not be clambering at the gates complaining that we passed it. We can quote common law to argue this Bill is not necessary but history has shown it is. I commend this Bill to the House.
I congratulate my colleague, Deputy Timmins, on preparing this legislation. No county in Ireland better understands the importance of personnel available to provide first aid than Monaghan given that Monaghan General Hospital is being wound down by the Health Service Executive as a trial run for the Hanly report. The hospital's needs are being ignored by the Taoiseach and the Tánaiste and Minister for Health and Children, Deputy Harney, who accepts no responsibility for the services necessary to the area. Privatising and advice from so-called experts is more important than the harsh reality of life and death in the stony grey soil of Kavanagh or the rolling hills of north Monaghan.
This legislation is drafted to assist those who go to the assistance of a person ill or injured as a result of an accident from being sued as a result of intervention. The current legal situation is that a person who intervenes to help those ill or injured as a result of an accident could be sued if something goes wrong. While all of us feel a keen obligation to give assistance to an ill or injured person, the potential for legal action against those who act in a compassionate way exists. Fine Gael believes the public should be encouraged to take on the role of the good samaritan with the assurance that members of the public will not be victims.
In the Monaghan section of my constituency it is estimated that up to 16 lives would have been saved if Monaghan General Hospital had been open and on call. I know several individuals whose lives have been saved through being brought to hospital either by car while off call or by ambulance since this service has been brought back on call for medical purposes.
Deputy Timmins addressed a meeting in Ballybay town to encourage self help by setting up properly structured voluntary groups with a view to making defibrillators available in the wider community. It is clear that his work with the ambulance service personnel has set up a tremendous structure in Wicklow.
The number of young people who have died in the area of sport in recent years is shocking. We must congratulate those doctors and nurses who have intervened in such situations and brought people back to life. This happened recently to a young man on Clones football pitch. We still have people such as that young doctor who are prepared to jump in and do what is necessary for people in the same situation as the young man.
It is necessary that this legislation be passed so that people acting in good faith will not be exposed. People properly trained with the support of the health board and attached to a health board scheme are insured for the use of defibrillators. In Ballybay, County Monaghan, the local community, with financial support of the credit union, has purchased a defibrillator. A number of people have been trained in its use and more are in line to receive training. A number of football and community clubs are considering undertaking similar measures. We must examine the structures in Wicklow where those trained in first aid with defibrillators work in consultation with the ambulance service.
Carrickmacross also needs a community group to get involved in this. I hope the Government accepts this Bill as it stands or with whatever amendments are necessary. I hope sufficient funding will be provided to local health services to train and provide the necessary back-up services to these community groups. In this way people in rural areas will have an active back-up service and some assurance that help is available.
The recent death of Mr. Walsh in Monaghan General Hospital demonstrated how personnel were anxious about insurance liability. They had been warned never to take part in self help. This is a clear example of the anxiety people have about doing what should be done. In a constituency such as mine where there is a doctor on call, there is major anxiety about when and how one can locate a doctor on weekends or late at night. The structure promoted by Deputy Timmins is something we wish to see nationwide. This legislation is necessary to support this structure.
I congratulate Deputy Timmins on the timely tabling of the Good Samaritan Bill. This legislation will have a positive impact if it concentrates legal minds and the minds of those in the voluntary sector. It will greatly assist people in the way they react when called upon to give assistance at a crucial point.
Ireland was a more compassionate country when it was not as affluent as it is today. When I was first elected to this House, people were more compassionate to each other and the Good Samaritan Bill addresses this. The manner in which people interact has changed from an understanding of the decent thing to do to a shrug of the shoulders. This has major consequences for people in certain circumstances. If the Bill had been published 20 or 30 years ago, no one would have been concerned about helping a person in difficulty, irrespective of conditions. A bond of goodness existed in all people but because of the way we live and the nature of human interaction in this era, that bond has been lost.
Many will say they fared badly by their well intentioned intervention. They may think people did the wrong thing. If this attitude has seeped into society, enacting a Bill may not change it. Nonetheless, this legislation is a vital measure to assist the voluntary sector to do what has been taken for granted. The first responder scheme, to which Deputy Timmins referred, has been running in Mountbellew for some years. It is excellent but I do not have time to speak on it. Would it not be a disaster if people refused to join this movement because they did not think they were legally covered? This is the central theme of this debate.
The Irish Nurses Organisation received a brief from an eminent barrister. A professional nurse referred to driving to Dublin and seeing a crashed car. As the nurse was about to help an ambulance arrived. The nurse continued on the journey but questioned if that was correct or if it would have been better to stop. The barrister responded that under Irish criminal law, no nurse is obliged to stop at the scene of an accident. In some countries it is a crime for nurses, doctors and paramedics to refuse to stop at the scene of an accident, even when off duty. Ireland is not one of these countries.
What if no ambulance had been there? The answer was that the same holds true — even if there is no one else around for miles, no law requires one to be a good samaritan. The next question was, am I ethically obliged to stop? Most nurses would feel obliged to stop to see if they could help, but An Bord Altranais has no specific rule about acting as a good samaritan. Finally, the question was asked if one could go to jail for refusing to stop, be found guilty of misconduct or be sued for anything else. The answer given was that one cannot be sued for refusing to stop. To succeed in a case like that, it would have to be shown that one owed the injured party a duty of care.
The Minister can see where we are coming from, that there is a possibility that someone who performs a good act could be held liable in court.
I compliment Deputy Timmins on introducing this Bill. I am in the process of organising a first responder training day in Listowel, to be held in approximately four weeks' time. The people involved in providing that service have asked about the progress of this Bill. These are professionals from the Health Service Executive who feel that this Bill is essential to facilitate the successful roll-out of the first responder scheme across the country. They are seeking the protection that this legislation will afford people. The first responder training days have been very successful.
With regard to Kerry, there was a tragic event there today, when a very distinguished sportsman died from a heart attack. Kerry has the highest rate of heart disease in the former southern health board region. That region has the highest rate in Ireland and Ireland has the highest rate among the EU countries. For that reason, the first responder scheme is very important. However, there is a fear among people that if they act or get involved when someone falls ill or is injured, they could then be the subject of litigation. That is a genuine fear.
As someone who is still involved in sport, I have seen people suffer serious injuries on the field. Usually, unless someone knows what he or she is doing, the response is to leave the injured person alone and to call an ambulance. If people had the confidence to intervene, they could save the injured person, who could have suffered a heart attack, cardiac arrest or some other injury. Simply putting a person in the recovery position can make a real difference. A person could swallow his or her tongue, for example, but if there is immediate intervention, by placing one's finger behind the tongue and releasing it, that could prevent someone from choking and save his or her life. The same applies to people who are bleeding profusely from the head. If such people are left lying on their back and cannot get rid of blood in their mouths, they could smother. I came upon an accident one time, where people were looking at a woman on the side of the road. I suggested that she be put in the recovery position — I had some first aid training when I was a physical education teacher — and that saved her life. She thanked me afterwards and any time I meet her she says that but for my intervention, she would not be alive now.
The Minister probably knows the law in this area better than the rest of us but if such a provision works in America and Canada, why can it not work here? There are moves all over the country, initiated by Deputy Timmins in Wicklow, to roll out the first responder schemes as part of the overall cardiovascular strategy and they are working very well. There are defibrillators in golf clubs and GAA grounds all over the country. In the past few years, a number of people have died playing golf and now most clubs in the country have defibrillators. However, people need to be trained and to have the confidence that, should they intervene, they will not be subject to litigation subsequently.
I commend the Bill highly. I know the Minister is a rational and pragmatic individual and I appeal to him to accept this legislation.
I compliment Deputy Timmins on bringing the Good Samaritan Bill before the House. It is important legislation and reflects the fact that there is a constant need for us, as legislators, to look at what is happening abroad. We can certainly learn from the failings and successes of our neighbours in the EU and in countries further afield. When Deputy Timmins was drafting this Bill, he examined the situation abroad. He discovered cases in the United States where people were sued for coming to the aid of others who had become ill. Fine Gael realised that this could become an issue in Ireland, which is far more litigation conscious than was the case in the past. A total of 49 states in the US have enacted similar good samaritan legislation. It makes logical sense for Ireland to act before a problem emerges.
In publishing this Bill, we are raising awareness of a very serious issue, namely, that every year between 6,000 and 7,000 people die from sudden cardiac arrest. In recent years we have seen the tragic deaths of several very talented young sports people from sudden cardiac arrest. Defibrillators have a strong role to play in preventing death from sudden cardiac arrest. When a person has a heart attack, his or her chance of survival drops by 10% every minute, and time is obviously of the essence in such cases.
Deputy Timmins has been involved with a voluntary group in Wicklow which has been very effective. It has engaged in fundraising, as well as purchasing defibrillators and making them available throughout the area. I represent people in Sligo and believe there is an urgent need to involve communities and voluntary groups in the provision of defibrillators in regions where they would not be otherwise available. There are several areas in County Sligo that have no service whatsoever at present. I am certain the commitment and fundraising required to obtain such devices exists in those areas. However, there are concerns about litigation and the operation of defibrillators, although local people could work with Sligo General Hospital in the area of training.
The pilot group that was set up two years ago in Wicklow aims to make defibrillators available to the wider community, which is an admirable objective. The group has been very successful to date. As a representative of a mostly rural constituency, I see that such action is vital to help to save lives. The availability of defibrillators is of critical importance when time is precious and people cannot afford to wait for an ambulance to arrive. To have a local person who is trained in the operation of a defibrillator would be of enormous benefit to every community. This Bill will allow people to help each other. We must not forget that the community and voluntary sector is the backbone of every town and village in this country.
The terms of the legislation are exact. I compliment Deputy Timmins on a very detailed Bill which has been scrutinised with every fault in mind. The Bill exempts health care professionals working in the course of their employment. It will help those who, in good faith, come to the aid of people who have fallen ill. Unless he or she damages the ill person as a result of gross negligence, the good samaritan will be protected under Irish law for the first time. People should be able to give assistance to others without fear of litigation or a court summons. I fully support this Bill and commend Deputy Timmins and the Front Bench on bringing it forward. I appeal to the Minister to support it because, as previous speakers have said, it can save lives and will empower people to get involved in their local community.
The voluntary sector and the fund-raising activities people become involved in show that they are prepared to give of their time. Irish people are good samaritans because they consistently help others but with the wealth being created in our boom economy, the risk of litigation has increased. If that could be prevented and the Minister took Deputy Timmins's Bill on board, it would be a good day's work. It has been successful in the US, and the fact that it has been enacted in 49 states shows how important it is.
Deputy Timmins has researched the Bill carefully and has operated the defibrillator service successfully in County Wicklow. It will be well received in County Sligo because it will empower communities to save lives by the provision of defibrillators and will remove the possibility of claims for litigation arising from negligence on the part of good samaritans.
Deputy Timmins's speech presenting this Bill unsubtly suggested I should accept it in the spirit of Santa Claus and that I would be hard-hearted to reject it, but the Bill is very badly drafted, badly thought through and would create more problems than it would solve. Section 2 provides that:
Notwithstanding the rules of common law, a person other than a health care professional acting in the course of employment who-
(a) provides emergency first aid assistance to a person who is ill, injured or unconscious as a result of an accident or other emergency,
(b) provides the assistance at the immediate scene of the accident or emergency, and
(c) has acted voluntarily and without reasonable expectation of compensation or reward for providing the services described,
is not liable for damages that result from his or her negligence in acting or failing to act while providing the services, unless it is established that the damages were caused by the gross negligence of the person.
This is the nub of the matter. A person is not liable for damages for failing to act unless there is gross negligence. In effect the Bill creates an obligation to act to save somebody unless it would be grossly negligent not to do so. It creates a duty to intervene by the back door because one would not be liable for damages for a failure to act unless it arose from gross negligence. It makes it compulsory for everybody to intervene unless it would be grossly negligent of them not to do so. That is a very serious change to bring about in our law. It is serious to tell somebody they must intervene in an emergency and may be liable for damages but that failure to act may constitute a basis for suing. The only exception is where one's intervention is negligent but not grossly negligent. In effect this Bill overturns the common law. Is it a good idea to cast on people by statute a duty to intervene in first aid situations?
The Bill goes on to say:
For the purpose of subsection (1), a health care professional is acting in the course of employment if he or she is providing emergency health care services or first aid assistance to a person who is ill, injured or unconscious as a result of an accident or other emergency, having been summoned or called to provide services or assistance for payment or reward.
I will ask a simple question. If somebody telephones the local doctor to say a man has been knocked down on the road and the doctor runs down the road with his bag, his defibrillator, his stethoscope and emergency kit, has he been summoned or called to provide services or assistance for payment or reward? The people who drafted this Bill must answer that question.
How would the Minister answer it?
Do not try to be smart. The Deputy is arguing this law should apply in the State.
How would the Minister answer it?
The Deputy is proposing the law should be changed.
He is the Minister for Justice, Equality and Law Reform.
If a doctor is told that around the corner from a surgery a patient is lying in an unconscious condition after an accident and the doctor runs to help him, is that doctor acting for payment or reward?
What does the Minister think?
I think not.
Of course he is not.
The Bill proposes a law that if a doctor runs around the corner, finds someone unconscious and acts negligently in the treatment of that person, the doctor will not be liable unless he or she was grossly negligent.
Provided he did his best.
On other hand if a paid doctor on call or a medical professional arrives in an ambulance, they have a different duty.
The Minister is on thin ice.
The Deputy should stop interrupting and making noises.
The Minister is trying to pick holes in the Bill. His scripted reply is much more amenable.
I will sit down if the Deputies want to shout.
This is my first time in the Chair so I ask Deputies to come to order.
It is exactly what I expected of him.
On a point of order, the Minister has circulated a scripted speech. Should I return it? Does the Minister withdraw the scripted speech?
I have not circulated a script. If the Deputies want to hear the truth about the Bill, they can hear it.
The Minister is entitled to speak.
I ask the Minister to give his view, not to ask questions we cannot answer.
When I came into this House I thought this was a serious proposal. I now learn the proposers themselves do not even understand what they are proposing, which is a sad fact.
Are we to have different duties of care for a doctor who runs down the street to help and a medical assistant in an ambulance?
That is an interesting point of view because it means one can sue the person in the ambulance but not the doctor summoned to an emergency in a street. One's own general practitioner can be sued after being called out. If I call a GP to my house for an injured family member, he will not be able to avail of this because he would expect a payment, but if somebody calls to a local GP surgery, there is a different duty of care.
That is right.
This must be thought through because if two doctors arrive on a scene, one called out from the nearest surgery, the other called out because the patient is on his list, and both provide exactly the same service but are treated differently by the courts, the medical profession will be torn to tatters.
Suppose the person is not a doctor.
If a paramedic in an ambulance renders a service to someone, he or she would be treated more harshly under the law than an accident and emergency doctor who sees someone fall over in the street. Is this the law we want? Deputy McManus, above all people in this House, should think about this. She is health spokesman for her party and knows well what a GP practice is like. Does she want a situation where if a GP goes to visit a patient he is liable for an action while if he went out and saw someone else's patient drop down in front of him, he would not be liable?
We are not talking about doctors.
The Minister should propose a change to the Bill.
Do we want doctors to be worse off treating their own patients than if they were treating strangers?
It would be lovely if a doctor could come out all the time.
The fact they are rewarded for seeing their own patients changes the way in which they must approach the patients. They owe those patients a higher duty of care.
I understand the Minister's point but that decision must be made.
I do not agree with this Bill because it has not been thought through.
Does the Minister agree with the principle behind it?
There is a case to be made for a defibrillator system across Ireland and regulating the circumstances under which people would be liable for the use of such equipment. That is a good point but it is not what the Bill is about. The Bill is a wide brush that states the standard of care due from a doctor to a patient varies by reference to whether the patient is on the doctor's list. That is a new concept and I would like to hear if the medical profession is content with it.
Is a person summoned or called to provide services or assistance for payment or reward if he is simply paid to be somewhere? Is a salary cheque for a doctor in a medical centre payment or reward? Is that what the Bill is designed to comprehend, that someone paid to be a nurse in a shopping centre owes a higher duty of care to someone he or she finds falling down stairs than a nurse who happens to come by?
That is the intention.
Then we have another concept. A doctor who knows a great deal at a scene is effectively exempt unless he or she engages in gross negligence and a paramedic who is paid to be there can be sued because the paramedic, who is less expert, is there for reward because he is being paid. Do we want to go down that road? It would not improve our law.
When the court and civil liability Bill was being composed, we looked at these provisions. The point made by Deputy Timmins at the outset about volunteerism was raised. Volunteerism is under stress and I contemplated introducing a differential negligence test for those who provided facilities such as children's playgrounds so they would not be liable every time a child got a splinter. Those who run gymkhanas or horse shows on a regular basis for the community should not have to insure against myriad things happening. Many voluntary activities attract punitive insurance costs. I consulted the Attorney General on the issue and decided it was such a complicated point and the way in which it was phrased would have to be so carefully done that I could do more damage than good by altering the common law position that exists now.
For the first time in Irish law, the last paragraph of section 2(1) would create a liability for failing to act in circumstances when dealing with an emergency and would provide that failing to act could give rise to a claim for damages unless gross negligence could not be proved. That is what I am most worried about. For hundreds of years the law has stated that good samaritans are good because they do not operate under a duty. This Bill for the first time introduces the concept of people being sued for failing to act in respect of others and only gives the out that gross negligence would have to be proved against them. I am worried about doing that on the hoof. We should not blunder into such a new legal concept without careful consideration.
Law like this exists in some continental countries, where a person can be sued for failing to rescue someone else and he or she must prove that his or her actions were reasonable. Do we want to do that?
That is not the intention of the Bill.
I know, that is my point. The Bill as presented and the intentions behind it were entirely laudable, but when we look at the contents of the Bill, they make it possible for the first time to sue someone for failing to act. Is that a good idea?
I agree with Deputy Timmins and the other speakers that we do not want a society in which people hesitate to become involved because they worry they might be sued.
We are delighted to hear it.
When researching for this debate, however, the Department made some inquiries of the State Claims Agency, which is unaware of any case that has ever been brought in the circumstances described by Deputy Timmins.
I made that point in my speech.
I know, and that is the point. We are dealing with a problem that has never existed in the past, where a volunteer offering first aid to someone else in good faith has been sued. Is it a good idea to address a situation that has never arisen in terms that would introduce the idea of people being sued for failure to offer first aid? I worry a great deal about that concept. We should not lightly go down the road of making failure to act actionable without carefully thinking out its implications.
My problem is with the Title of the Bill. I am told I would be hard hearted and not Santa Claus like if I did not accept it but I do not agree with the principle underpinning it. It is a two section Bill fraught with difficulty. It provides for different standards of care for people in almost identical scenarios. A humble paramedic owes a much greater duty of care to somebody he or she takes charge of at an accident scene while on duty than an expert doctor who comes across the same scene. The Bill distinguishes between doctors who are treating their own patients and patients of other doctors and it differentiates between a doctor who is on duty in a hospital and who finds somebody who has been brought to the hospital lying injured in the back of a car and the doctor who is off duty and is on his way home when he encounters a similar scene.
That is the fourth time the Minister has made that distinction.
It is a fact.
That is the Minister's interpretation.
That is what the Bill will do.
There is more to the Bill than that.
The Minister can amend it on Committee Stage.
Differential levels of liability could be introduced for health care professionals, which is the term used in the Bill. Does "health care professionals" refer to paramedics, nurses, consultants and general practitioners?
It refers to good samaritans.
If a general practitioner treats the patient of a colleague, he has a duty of care but if he treats his own patient, he has a different duty of care. Will that become law?
One would think accidents only happen outside doctors' surgeries the way the Minister is talking.
All good samaritans are not doctors.
Our great problem is the Deputies have not thought their Bill through.
The Bill will introduce concepts into domestic law which have not been thought through. If they had been, Deputy Timmins would have said there would be a differential level of liability between two doctors.
That is the intention. I referred to American case law in my contribution.
So from now on paramedics on duty will be liable to be sued in circumstances where experts who do not have a contractual relationship with the patient have no duty. Public servants who take a salary cheque at the end of the month for undertaking duties will be in a different position from consultants who walk past the same scene.
What is the Minister's view on the position of a member of the public rather than a health care professional in such cases?
The Deputies have not thought this carefully through.
What about a member of the public?
The Bill contains only two sections and the Deputies are asking me to move on to the provisions that are appropriate. They are trying to say it is a good idea to amend the law though this legislation.
The Minister said the same earlier.
I am trying to work out whether the Bill is related to defibrillator services or whether it provides for a broad brush, which would ensure people stay away from accident scenes because differential levels of care would be introduced in circumstances in which it is not appropriate to do so.
I would like to hear the IMO's views on this, since it represents many general practitioners. Perhaps Deputy McManus, as health spokesman for her party, has a greater intuition regarding where that body stands. I would like to know whether the IMO wants this provision enacted. Perhaps the organisation would like to distinguish between general practitioners treating their own patients and other patients. Perhaps it wants to differentiate between members of a group practice treating a patient at an accident scene and members of another practice coming across the same scene.
The Minister has not thought this out too well.
Is a visit to an accident scene undertaken in the expectation of reward if one is a member of a group practice, which would charge for the call out? Does one owe a greater duty in those circumstances?
What about good samaritans, who are not all doctors?
I know, but the Bill exempts health care professionals acting in the course of employment. Employment is defined curiously as "having been summoned or called to provide service or assistance for payment or reward". I presume this means in the course of an employment. However, the legislation has not thought through carefully two fundamental concepts, the first of which is whether people can be sued for failing to get involved in accidents and emergencies.
That is not the intention.
It may not be the intention but why does section 2 state "or failing to act"? Second, I wonder whether the introduction of differential levels of liability for different health professionals is a good idea and how it would work in practice.
With regard to group practices, is somebody providing a service for payment or reward if he or she is called out to treat an accident victim using the same telephone system or GMS list of the practice? Will a differentiation be made between them and members of other group practices or sole general practitioners in an area who come on the scene of an accident? These are legitimate concerns.
The Cabinet earlier considered the legislation. It is not worthy of support in its present form but the issue of voluntarism is worthy of study. The legislation deals only with first aid in limited circumstances where it must be administered at the scene of an accident or emergency. That is another unintended limitation of the Bill. The Cabinet decided to ask the Law Reform Commission to examine this issue in a broader sense and deal with the questions of differential liability among health professionals, whether we should, in any circumstance, make actionable a failure to intervene, whether the scope of legislation in this regard should be confined to first aid cases or should be underpinned by broad principles and whether cases where people who engage in voluntary activities for the good of their communities should be covered. If this law was introduced and failure to act became actionable, is a person who finds somebody on a cliff ledge covered? If the person is not ill or unconscious and is not in receipt of emergency first aid and a rope is fed down to him or her, the Bill is of no use because its scope is so narrow. If one began to pull up the rope and toppled down on top of the person, injuring him or her due to one's negligence, the Bill would not apply. This Bill does not even deal with somebody who jumps into a river or takes out a boat to save somebody from drowning, something which has nothing to do with first aid.
Why has that nothing to do with first aid?
Unfortunately, a necessary precondition for this Bill to come into effect is that the person render emergency first aid assistance to a person.
Could first aid not be given in a boat?
First aid is not involved in or does not apply to pulling a child down from a tree, pulling a person off a cliff ledge or throwing a lifebelt to a person in a river.
The Minister should stop digging.
Some people have a neck. This is a hole dug by the draftsman. I am asking the Deputies not to dig the hole any deeper, but to agree with me that there are broader questions that should be studied by the Law Reform Commission. It would be foolish to proceed with or accept this Bill which is fraught with difficulty and riven with internal contradictions.
I will share my time with Deputy Lynch. I pay tribute to Deputy Timmins, a fellow Deputy in my constituency. I am conscious that over recent years he has been deeply involved in the development of community services and the provision of defibrillators throughout a largely rural community that is not the most accessible in terms of health services. His contribution has been considerable in terms of both impact and effort and it is important that this is recorded in the House because much of it is behind the scenes. I noted that in his speech he did not talk about the extent of the important work in which he is involved.
This issue leads inevitably to questions being raised about litigation. The growth of litigation, especially in connection with the health services, is terrifying. If we look to the United States we can see the direction in which we are headed, but the Minister may not be uncomfortable with that. In health services across Europe there has been a development over recent times of alternatives to litigation and we could learn much from these. The advantage of litigation is that people stay on their toes and standards are maintained. However, many people, especially lawyers, make huge profits as a consequence of litigation being so central in our lives, especially when the health service cannot provide, people make mistakes or there is deliberate negligence.
The issue of what happens to the good samaritan came up in the negotiations for the State indemnity scheme. The matter was raised by doctors because they felt the scheme would prevent them from going to the scene of an accident because of having no previous contact with the patient. They were concerned about the risk in which they would be putting themselves by doing so. The matter was resolved. I was not party to the negotiations, but know it was an issue.
It is unfair of the Minister to state that this Bill somehow creates a new differential. It is different if a doctor goes to see his or her patient because they have established a relationship. Even if it is a crisis a general practitioner is called to, he or she knows the patient. On the other hand, a person driving along who sees somebody lying unconscious on the road has no prior connection with that person. It is a fact of life that this is a different relationship and it is important to recognise that. We cannot say the two experiences are the same. A health professional dealing with one of his or her patients has a different relationship, but this does not mean he or she will never be negligent in that situation.
I agree the Bill is flawed, but I had hoped there would be a more positive critique from the Minister. However, he did make amends somewhat at the end of his speech. I welcome the fact that he overcame his natural arrogance——
——and decided that perhaps there was something in this Bill and he could be kind to us with Christmas coming and refer it to the Law Reform Commission. That is worthwhile. I do not know whether this will create a delay, but it is welcome and is positive. I hope this debate assists in the process of coming to some conclusion.
I find the constant lecturing of the Minister very hard to take. He is the Minister who produces legislation with so many amendments being pushed through at the last minute that Opposition Members barely get the chance to read them. He is the Minister who is part of a Government that tried to impose legislation by way of a constitutional referendum that would prevent a doctor from treating a woman who would die if a doctor did not intervene and carry out a termination of pregnancy. If it did not happen in a hospital, the Bill the Government produced would have meant a doctor was barred from treating such a woman in an emergency. That seems far more barbaric than any deficiencies in this Bill.
If the Minister wants to give lectures, he may have to listen to them as well. Let us look at the record. If that legislation had been agreed and the people had voted for it, it is very likely that at some point a woman would have been dependent on a doctor to save her life and he or she would have had to break the law to save it. If the Minister does not recall it, he should read it again. It is imprinted on my brain. I remember clearly that the requirement was that the procedure had to be carried out in a hospital. Therefore, if a dying woman was outside the hospital context and needed a termination to save her life, that was too bad.
We can look at this legislation in another way in terms of how it can be improved. It is worth looking at it from the point of view of victims rather than from that of health professionals. I was concerned that there was no way of gaining compensation or that the immunity of the health professional was complete in terms of the rights of the victim. The victim of negligence would be without redress, despite suffering because of another's negligence. Should this be the case and should the victim be protected from the consequences or should the care giver be protected from the consequences of his or her negligence?
I suggest a compromise. The law could state or clarify that instead of immunity, where a person provides good samaritan assistance, a court, in determining any claim of negligence against that person, must consider the factor or circumstances in which the emergency care was provided, the degree of emergency involved and the bona fides of the good samaritan. The law could also employ a principle that a person ought not be penalised for assisting a person in an emergency. Such changes as these would ensure that good samaritans are not penalised for acting as such and would recognise their value while not protecting those who are negligent.
I had hoped the Minister would have adopted a more positive approach to this legislation, allowed it to go forward and provided the necessary amendments. He has been in Opposition and must recognise that it is not a simple task to produce watertight legislation. It is not simple, even when in Government. When it comes to flawed legislation the Minister only has to look at his own body of work to find many examples. None of us always gets things right, even the Minister, Deputy McDowell. I hope he will examine the Bill and table amendments to it, and we can take it from there. It is imperative we deal with this important issue. I commend Deputy Timmins for initiating the Bill.
Like my colleague, Deputy McManus, I congratulate Deputy Timmins on bringing forward the proposed legislation. As she said, it is no easy task. The Opposition has to do this work with the help of——
It has its draftsmen.
The Minister is misinterpreting Deputy Lynch. He is wrong.
Having examined Government legislation, I can say Opposition draftsmen are not the only ones to get things wrong.
I agree with that.
Just because the Minister says it is wrong does not necessarily mean it is wrong.
That is not the point I am making.
I apologise to Deputy Lynch.
The point I am trying to make is that when the Opposition gets proposed legislation wrong the Government does not accept it. The Government does not accept Bills proposed by the Opposition, except on rare occasions. However, when the Government gets it wrong, it usually just forces the legislation through anyway. That is the major difference between the two types of proposed legislation. This has consequences for us all, not just the Opposition.
I listened on the monitor to the Minister's interpretation of the last line of the Bill. I was told he was deliberately misinterpreting it. The Minister is shaking his head because of course he would not do that. He is probably the most tolerant person I have ever met. There is no need for a Good Samaritan Bill in his view because he regularly stops on his way home to help people and they would not dare sue him. After giving them the essential help they need at the side of the road he probably gives them a lecture on why they should not be there in the first place and who they should have called for help, gives them the number and reels off exactly who they should be involved with. After getting all that out of the way he would ask himself why we need this type of legislation. Why is it necessary to have legislation to protect people who come to the aid of others in distress in the Ireland of 2005?
Who says it is?
We need it because people are afraid of becoming involved in cases where they could be sued. Society is so litigious that even people who are being assisted could well consider suing. I found this concept difficult to take on board and asked myself who would do such a thing. I cannot imagine suing someone who came to my aid if I was involved in a crash. However, I heard of a case which involved two patrolmen who came to the assistance of somebody involved in a car crash. The accident victim sued them because he blamed them for the paralysis from which he suffered following the accident. While he did not win the case, he sued them. The finding of the court was that the patrolmen did not have a duty of care to him and they were not obliged to rescue him. However, word gets out and one could imagine it happening here. Gardaí could end up being sued if they attempt to prevent further injury to the victim or victims of an accident.
It is a horrible vista that in this day and age we might need such legislation. Introducing such a Bill is an attempt to ensure that people no longer feel the threat of being sued in the event of coming to the aid of others. I must hold up my hands and say that I am not the kind of person to jump in with a defibrillator. I would probably be like the Minister, stand on the footpath and lecture——
Speak for yourself.
——victims about taking off their belts to tie around their arms so they would lose a lot less blood in the following half hour while we phone the emergency services. I am not that type of person but there are people who have a degree of knowledge and believe they could be of some comfort to an accident victim and at the very least prevent him or her from further injury. People who work in the emergency services go off duty and are out and about in the same way as the rest of us. Some people are prepared to give assistance when it is necessary and we should protect them. Giving assistance may be part and parcel of their duty when they are at work but they can give worthwhile assistance outside that. We should examine this matter carefully.
I agree with the Minister, this is a much wider-ranging issue than what is encompassed in this Bill. However, the Minister must admit that the Bill at least has us talking about it and has prompted him to ask the Law Reform Commission to examine the wider aspects of the matter.
That is true.
We do not want the Minister to be a good samaritan. I am not certain he has reached that level of enlightenment but at least we would like him to be tolerant——
The innate moral superiority of this is great.
All I say to the Minister is that the Good Samaritan Bill is so called for a very good reason. It should engender in all of us the need to do good. As I said, I am not certain the Minister has reached that level of enlightenment, or that he ever will, but he should at least be tolerant and recognise that the Bill is worthwhile. It aims to protect people and put in place a particular set of values which we should try to uphold.
Up to yesterday I might have had a different view of this matter but I came across a situation which involved a man who has been a volunteer in his community all his life. I am not good at guessing ages but I imagine he is in his late 50s or early 60s — perhaps he is not that age. All I will say is that he had to appear in a forum that related to an issue in an area in which he was a volunteer. The work he did was unpaid but he was berated and belittled for not being good enough as a volunteer. Whatever the merits of the case before the forum, the manner in which he was treated beggared belief. Afterwards he mused as to why anyone would be a volunteer or donate time to his or her community. It was awful to watch how he was treated. In a different context, the Bill is about protecting people who still have that spirit within them and ensuring that when they volunteer their time or service in an unpaid capacity they are protected from somebody who may take a different view. That is what this is about, no more and no less.
I know the Minister does not do so, but I decry the loss of certain values in society. We all recognise the value of people who care for their neighbours, who are good samaritans. The Minister should look at the issue from that point of view. When the Minister looks again at the last paragraph of the Bill he will recognise that he is misinterpreting it. I am sure that was always the case.
I am not.
The Minister is misinterpreting it.
I am certainly not.
The Minister certainly is misinterpreting it. It would not be the first matter the Minister misinterpreted but that is beside the point.
Does a GP who goes to the scene of an accident involving a GMS patient appear in expectation of reward?
The GP in question cannot possibly know whether it is his or her patient.
What if he or she does know?
I do not know of any GP who, on receiving an emergency call, asks for a name and address in order to ascertain whether the patient is a client.
That is the point.