I thank the Members who spoke in favour of the Bill. I also thank Members from the opposite side of the House who made positive comments. This Bill is a matter of life and death and I regret the Government side does not accept it. For a former Attorney General and a serving Minister in Cabinet to be so ill-prepared, to engage in a futile frolic in the words of his colleagues and to pose hypothetical questions without dealing with the substantive question demonstrates a lack of understanding of and empathy with the substantive issue in this Bill. I am amazed so many Government patsies followed the same line as the Minister.
The Minister's pronouncements on what is right or wrong are not always correct. As Deputy Catherine Murphy stated, he tabled some 200 amendments to the Criminal Justice Bill. This does not indicate he is competent in the field in which he purports to be an expert.
The Minister focussed on a number of areas of the Bill, with which I will deal presently. There are three main areas of the legal concept of the good samaritan open to consideration: there is the legal duty of a citizen to assist someone in need, the compensation for loss or injury on the rights of a good samaritan, and the liability or risk assumed by a good samaritan. This Bill deals with the last one of these but the Minister knowingly misrepresented the Bill. He focussed on section 2(c) which states a person: “is not liable for damages that result from his or her negligence in acting or failing to act while providing the services”.
Extrapolating from the phrase "failing to act", the Minister superimposed it on the scenario of someone driving by the scene of an accident and refusing to act and suggested such a person would be liable for compensation. He clearly took this out of context because the full context refers to "acting or failing to act while providing the services". I am surprised the Minister did that and that so many Fianna Fáil backbenchers followed him down that road. I am surprised The Irish Times and other media outlets take the Minister’s statements at face value and I suggest they analyse what he states in future.
The Minister also referred to the differential level of liability between two doctors, or between a specialist and an ambulance driver, suggesting the specialist would know much more than the ambulance driver and that accordingly the legislation was unfair to the ambulance driver. This legislation does not deal with ambulance staff, whose duty of care is not diminished or increased, and whose protection is not increased or decreased. Rather, the legislation deals with the volunteer, whether it is a medical professional or a member of the public.
I referred to the Pamberton v. Dharmani case in the United States in 1994, which found that a physician in a hospital called in to assist during a procedure had less of a duty of care than the doctor dealing with the patient full-time. I also referred to the difference between the French and American systems. In France there is an obligation to intervene and I provided an example of this, stating that photographers at the fatal car crash of Princess Diana were investigated and questioned on their failure to act. I contrasted this with the Kitty Genovese case in America, where people stood by and did not act. I stated we had a long way to go before arriving at either system.
I know there is a need for this Bill because I interact with the community and I am involved in the first responder scheme. First responders are covered by clinical indemnity insurance and the Department of Health and Children. Encouraging targeted defibrillation in clubs and societies is hindered by the lack of legislation. The issue of insurance is raised consistently. I understand no case has been taken although Deputy Lynch referred to a case where gardaí in a patrol car intervened and one garda was sued but not found liable. I am not aware of this case and I must follow it up with Deputy Lynch.
The Minister is aware that no authority can state that a previously unknown tort cannot take place. I used the example of the breach of duty of contract in the mid-19th century, negligence in the Donoghue v. Stevenson case in the 1930s in England and the tort of intimidation, which took root in law in England in the 1960s. The fact it has not happened in the past has no bearing on the future. This is simple legislation that costs nothing but the Government intends to vote against it.
The concept of encouraging the use of defibrillators is one aspect of this Bill and the Minister is correct in characterising this as broad brush legislation. Unlike the Minister's response, much time, energy and research was devoted to this Bill. A Fianna Fáil Deputy referred to a report that has been prepared for the Government into sudden cardiac death. I am reasonably confident the report will recommend good samaritan laws. The people who wrote the report meet the same communities I meet, understand what is happening and understand the barriers to volunteering, unlike our Minister for Justice, Equality and Law Reform. I do not wish to be personal but I am surprised so many Fianna Fáil backbenchers followed his lead.
I take some consolation from the decision of the Cabinet to refer the issue to the Law Reform Commission. Perhaps some members of Cabinet have more sense than the Minister for Justice, Equality and Law Reform although I cannot figure out who they may be. Perhaps the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, was acting Whip for the day.
In May 2004 I tabled a parliamentary question to the Minister for Justice, Equality and Law Reform about local communities putting defibrillators in Garda stations and gardaí assisting the process. I received the standard Pontius Pilate reply from the Minister, stating it had nothing to do with him. He stated it was a public health matter and possibly one with which his colleague, the Minister of Health and Children, should deal. On 21 October 2005, one and a half years later, the Minister for Justice, Equality and Law Reform is on the front page of the Kilkenny People, launching a pilot scheme of defibrillators in Garda cars in Kilkenny. In May 2004 it had nothing to do with him but he was happy to turn up at the launch of a pilot scheme in Kilkenny and sanction the launch of a pilot scheme in Blanchardstown. Within a couple of years defibrillators will be in every Garda patrol car and the Minister for Justice, Equality and Law Reform will look for kudos.
I am confident a Bill similar to this will be introduced in the near future. I hope it will not be the current Minister for Justice, Equality and Law Reform introducing the Bill but someone from this side of the House. Perhaps he is not as enlightened as I gave him credit for but I believe the measures in this Bill will be introduced.
Last night the Minister asked how the IMO might look at such legislation. I challenge him now to send the legislation and the scripts of the debate to the various medical organisations to see their response. I believe their response will be very strongly in favour of this Bill.
In a few hours' time the benches on the Government side will be full. We will have the hurrahs and the claps. It is easy to spend the public's money but it is not so easy to be innovative. What was the slogan — radical or redundant? The Government is very clearly redundant. It is easy for it to spend money but not so easy for it to take on board a progressive idea that is not its own.
I commend this Bill to the House and deeply regret that the Government, in its wisdom, has chosen not to accept it. It is not flawed and even if the Bill did need amendments, for a Government to reject it on that basis while supporting legislation on Second Stage, with more than 200 amendments signalled, is a little hypocritical.