Michael McDowell (Dublin South East, Progressive Democrats)

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.

See this speech in context