Billy Timmins (Wicklow, Fine Gael)

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.

See this speech in context