File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Model Good Samaritan law

The country like India, being a developing country does not have a reasonable rescue mechanism in place when an accident takes place. In such cases bystanders play a major role in saving lives by taking appropriate measures. However, people hesitate to help people as they fear of getting involved in the case. It is the duty of the state to take measures to protect its citizen who willingly rescue those in need. This paper outlines the model Good Samaritan law and the measures taken by different states in India with regard to law and schemes to protect its bystander in case of any act done to save the life of a person in danger. The paper also analyses the current position in India, namely The Good Samaritan Bill (Protection from civil and criminal liabilities) and Miscellaneous Bill, 2014, the Supreme Court laid down guidelines in the judgment of Save Life Foundation & Anrs Vs Union of India and The Karnataka Good Samaritan and Medical Professional (Protection and Regulation during Emergency Situations), 2018. It also focuses on providing effective legal mechanism that encourages bystanders to help people who are injured. The discussions on the requirement of such a law have been undertaken only in the past decade. Lastly, the paper also gives comparative analysis of the laws made on the same subject in different states and the effective measures taken by them.

Introduction
A Good Samaritan refers to someone who renders aid in an emergency to an injured person on a voluntary basis. A Good Samaritan statute is a law that requires a person to come to the aid of another who is exposed to grave physical harm, if there is no danger of risk of injury to the rescuer.

India has the highest number of road accidents deaths in the world – 15 people die every hour and almost 60 are injured. The number of deaths due road accidents in the past decade is close to one million. 80% of road accident victims in India do not receive any emergency medical care within the critical first hour after an accident. According to the Law Commission of India, 50% of fatalities could be averted if victims receive timely medical attention.

“Golden Hour” also known as “Golden Time” refers to a time period lasting for one hour following an accident or traumatic injury being sustained by a person, during which there is highest likelihood that prompt medical care will prevent death.Bystanders are therefore, of vital importance to prevent death and major injuries to the victims of such accidents.

However, a large number of bystanders are unwilling to help the injured victims because they fear harassment by the Police, payment of costs at Hospitals, etc. According to a National Study conducted by the Save LIFE foundation and TNS India Pvt. Ltd.
- 74% of bystanders are unlikely to assist victims of road accidents;
- 88% of those bystanders gave the following reasons for their reluctance: legal hassles, including repeated police questioning and multiple court appearances; and
- 77% of the respondents cited detention at hospitals and having to pay hospital registration fees and other charges as reasons not to help.

The World Health Organization (WHO), in its “World Report on Road Traffic Injury Prevention, 2004” has projected that by 2020, road accidents will be one of the biggest killers in India. It also pointed out that high-income countries have well-organized ambulance-based rescue systems but middle and low-income countries, assistance by bystanders is most common.

Therefore, there was an immediate need to introduce a “Good Samaritan Law” in India to provide a legal framework to encourage bystanders to assist victims without fear of negative repercussions. “Good Samaritan Law” is a universal moral duty that must be legally protected. As a result, the Good Samaritan (Protection from Civil and Criminal Liabilities) and Miscellaneous Provisions Bill (hereinafter referred to as “the Bill”) was introduced in the Parliament in 2014 to protect a Good Samaritan from civil and criminal liabilities and to establish a supportive legal environment. It aims to constitute a Good Samaritan Authority and create an obligation on hospitals and clinics to help the victims. A bystander is someone who witnesses an accident which includes road, railway and air accidents. The Bill is still pending before the Parliament and there was a special mention in the Rajya Sabha on 3rd May, 2016.

The Ministry of Road Transport and Highways of the Government of India laid down certain Guidelines and Standard Operating Procedure and the Supreme Court recently approved these guidelines and made them enforceable in all States and Union Territories till an effective legislation is in place.

Concept of Good Samaritan
The Good Samaritan law offers to protect the altruistic rescuers from any liability that may arise out of any negligent acts or omissions from such rescue attempts.In order to understand how such law operates in a country, emphasis has to be placed on two guiding attributes namely:
The elements which may require a bystander to be responsible as a “Good Samaritan” and
The other essential ingredients to attract protection from any negative consequences from the authorities after a rescue attempt.

Analysis of The Good Samaritan (Protection From Civil And Criminal Liabilities) Bill
The object of The Good Samaritan (Protection from Civil and Criminal Liabilities) Bill is to protect Good Samaritans from civil and criminal liabilities and to establish a supportive legal environment by constituting a Good Samaritan Authority and aims to create an obligation on hospitals and clinics to provide emergency medical treatment. It extends to the whole of India.

Main Features of The Bill-
The Bill provides for creation of a Good Samaritan Authority and outlines the qualifications of the Chairman of the Authority. The Authority is required to have representation from each State and Union Territory.
The functions of the Authority are to receive complaints regarding harassment of Good Samaritan and the Bill provides for constitution of a Good Samaritan Fund for various purposes in the Act.

Rights of A Good Samaritan-
The most important right given to a Good Samaritan is the exemption from civil and criminal liability for any act done to save the life and property of the victim.
A Good Samaritan cannot be compelled to file an FIR or pay any charges for the treatment of the victim and cannot be compelled to stay at the Police Station or Hospital nor give any information regarding the identity of the victim, his own identity, or any other evidence regarding the accident.

In case if a good Samaritan wants to help in investigation process, the benefit is that he will not be called repeatedly and his statement will be recorded in a single hearing.

The Bill further provides that all hospitals and clinics to provide emergency medical treatment without demanding payment for such treatment. Any hospital or a clinic cannot deny emergency treatment even if the family is unable to make the payment. In case the hospital is not equipped to handle the victim, it is their duty to direct the victim to the nearest hospital or clinic where the facility for treatment is available. In case the victim suffers any physical or mental damage, or death is caused due to denial of emergency medical service by the hospital or clinic, a penalty of minimum Rs. 10 lakhs can be imposed along with the cancellation of the license.

States In India Having Provisions Or Schemes With Regard To Good Samaritan-
Delhi Good Samaritan Scheme
Under this scheme the state government shall provide an incentive of ₹2000 to those people who help accident victim to reach hospital. The main motive of the state government is to reduce time for an accident victim to reach hospital.

West Bengal Good Samaritan Scheme- Under this scheme the state government shall provide an incentive of ₹1500 to those people who help accident victim to reach hospital. The hospitals have been asked not to demand any payment or admission charges from the witnesses.

Karnataka Good Samaritan And Medical Professional (Protection And Regulation During Emergency Situation) 2018-
A Good Samaritan shall not be required to, -
a) furnish any of his own personal information such as his name, telephone number and address at the hospital including for the preparation of a medico-legal form; or
b) fulfil any procedure related to the admission of an injured person at a hospital; or
c) bear any medical expenses towards the treatment of an injured person at a hospital.

A Good Samaritan shall not be required for examination by the police, in accordance with section 9 and 10 of this Act, unless such Good Samaritan is proven to be an eye-witness to the accident or incident of crime or any other emergency situation:
Provided that a Good Samaritan may lodge a complaint with the appropriate authority as may be specified by the Government by notification, for any grievance against a police officer on the grounds of harassment or intimidation, and such authority shall ensure that a departmental inquiry is initiated on the basis of the complaint;

(a) A Good Samaritan may voluntarily provide to the hospital his own name and address, the name of the injured person, if known, and shall be required to provide the time and place from where he has rescued such an injured person;

if the information in clause (a) is provided by the Good Samaritan, a copy thereof, along with an acknowledgment of his services shall be provided to him immediately for his records.

Chapter VI of The Act Deals With Good Samaritan Fund-
Constitution of Good Samaritan Fund.-

The Government may after due appropriation made by the State Legislature in this behalf, make to the appropriate authority, grants and loans of such sums of money to the appropriate authority as the Government considers necessary.
a) There shall be constituted a Fund to be called as the Good Samaritan Fund to which the following shall be credited, namely: -

b) any grant or loans made to the appropriate authority by the Government.

c) all sums received by the appropriate authority from such other sources, as may be prescribed by the Government.
Such Fund shall be applied for carrying out the purposes of this Act, in accordance with such rules as may be prescribed by the Government in this regard.
Provided that the Government may apportion such monies from the Fund to support the reasonable expenses of a Good Samaritan in accordance with section 14 of this Act;
Notwithstanding anything contained in section 6 of this Act, the Government may by notification, after due appropriation made by the State Legislature in this behalf , make additional rules under this Act for the reimbursement of charges or expenses incurred by the hospital towards the treatment provided, if such hospital was unable to recover a reasonable minimum proportion of costs or expenses incurred for such appropriate treatment rendered, then that hospital may apply to an appropriate authority within such period and in such form and manner, as may be prescribed, by the Government in this regard, after the date of commencement of such rules.

Responsibility for implementation and administration of fund. The Government shall prescribe an appropriate authority by a notification, at the district level which shall be responsible for the implementation and administration of this Fund and shall act as the nodal authority for grievanceredressal under this Act.

Global Perspective
Countries all over the world are very different from each other – they vary in races, cultures, languages, economic status, etc. but one thing that binds this diversity, is humanity. Providing assistance to a person who is in danger is an indispensable aspect of humanity and therefore, it is important to look at the various laws governing a “Good Samaritan” in different countries.

France: Under the French Law, any person who wilfully fails to offer assistance to a person who is in danger incurs a criminal liability. However, such a person is exempt if providing assistance to the person in danger would put him or any third parties to any risk. In other words, the law casts a duty on a bystander to assist and failing to do so would make such a person liable to fine and imprisonment.

United States of America: Similar protection to good Samaritans is to be found in different states’ laws in the USA. States of Alabama, Alaska, Arizona, Arkansas, California and New York, to name a few, provide that if a person lends emergency assistance or service to another person in good faith, he is not liable in civil damages with respect to his act or omission.

China: The Good Samaritans’ Rights Protection Regulation is a recently adopted statute and applies only to the Shenzhen Special Economic Zone in Guangdong Province. However, it sets a good example for other cities. It applies only to rescuers who have no legal or contractual obligation to provide assistance to the victim. The rescuer is exempt from legal liability for unintentional injury or death unless gross negligence is proved. If a “Good Samaritan” dies or is injured while helping will receive compensation from the Government. They also have the right to seek the help of legal aid organizations if they face the threat of lawsuits.

Indian Perspective
The Indian scenario with respect to Good Samaritan law is underdeveloped and deficient in its operation. The discussions on the requirement of such a law have been undertaken only in the past decade. This is in consequence to the provision not being present anywhere in the Motor Vehicles Act, 1988 as well as lack of focus by the legislature, despite of the increase in road accidents in the past few years.

Although there have been shortcomings, in order to enact a suitable legislation for the protection of the ‘bystanders’ who come to the aid of the victims, substantial developments have taken place from the year 2012, where the Ministry of Road Transport and Highways (“MoRTH”) along with the judiciary have advanced the scope of the Good Samaritan Law. The most notable developments being:

The Supreme Court, in the case of Save Life Foundation & Anr. v. Union of India & Anr. granted legal teeth to the guidelines issued by( MoRTH) and the latter becoming binding in all states and union territories, till Union Legislature frames the required legislation.

The Good Samaritan (Protection from Civil and Criminal Liabilities) and Miscellaneous Provisions Bill, 2014, discussing the immunity which can be availed by the ‘bystanders’ or ‘first responders’ along with the need for a Good Samaritan Authority and the duty of the hospitals and clinics. Although still pending enactment by the parliament, the bill is a step in the right direction.

Elucidating on the recent advancements made in the Indian Scenario, the following has been observed:

A) The Save Life Foundation Judgement
Background The events of the petition were triggered through a Public Interest Litigation filed by the Save Life Foundation, a non-profit, non-governmental organization aiming to create a unique network of medical responders to come to the victim’s aid.

In the year 2012, the Supreme Court had constituted an expert committee headed by Justice V.S. Agarwal, former judge of the Delhi High Court, to deal with the legislation with respect to the creation of road safety, treatment of accident victims etc. to be considered under one umbrella. In the year 2013, Justice Agarwal conveyed his inability to continue which led to the appointment of Shri S.K. Skandan, Additional Secretary (CS&K) as the ad-hoc chairman of the committee with adequate representation from Union of India.

Out of the various recommendations made by the committee, [majority being dealt with in SC order dated April 22nd, 2014 in S. Rajaseekaran v. Union of India, the reliance was placed upon the report under the Head “Recommended Directions in Relation to Protection of Good Samaritans”, for immediate attention.

The MoRTH and the Ministry of Law and Justice were also supportive of the recommendations made by the aforesaid court appointed committee. Henceforth, the court had directed both the Ministries, in consultation with each other, to issue necessary guidelines with regards to protection of the Good Samaritans, which were issued in the notification titled “Good Samaritan Guidelines”

The Judgment and Guidelines -
Judgment: Pronounced on March 30th, 2016, primary focus was on the issue of the development of a supportive legal framework to protect the Good Samaritans. Although the Judgment had put emphasis on the guidelines issued by the 2015 Notification, it also shed light on the critical deficiencies in the Motor Vehicles Act and other laws governing road safety.

Guidelines: The important guidelines, to be followed by hospitals, police and all other authorities for protection of the Good Samaritan by:
Not holding the person liable for any civil and criminal liability; Allowing the person (including an eyewitness), who took the injured person to the nearest hospital, to immediately leave (except after furnishing address by the eyewitness only), with no further questions are to be asked;

Providing compensation or reward along with due acknowledgement by the rescued person, in manner specified by the State, encouraging other citizens simultaneously; Letting disclosure of personal information be voluntary and optional (including the Medico Legal Case Forms of the hospitals) and disciplinary action taken against the persons coercing the disclosure;

Conducting investigation through an examination only on a single occasion with application of the standard operating procedure so established under Section 284 (by way of commission) or Section 296 (through an affidavit) of the Criminal Procedure Code;

Conducting the aforesaid investigation using video conferencing extensively to prevent harassment;

Undertaking disciplinary action against the doctor for lack of response under the Medical Council regulations.

In addition to the above, the Ministry of Health and Family Welfare is required to issue guidelines for both public and private hospitals stating the procedure to be followed when assistance is provided by the bystander.

B) Standard Operating Procedure: The Standard Operating Procedure came into force pursuant to a Notification, issued by MoRTH for implementation of the procedure to be followed when conducting the examination of the Good Samaritan. The Superintendent of Police or Deputy Commissioner of Police or any other Police official of corresponding seniority heading the Police force of a District has to ensure that the procedure is adopted in the respective jurisdictions.

Judicial System On Good Samaritan Laws
The Department of Road Transport is responsible for framing motor vehicle legislation and evolving road safety standards in India. The WHO in its ‘World Report on Road Traffic Injury Prevention, 2004’ has projected that by 2020, road accidents will be one of the biggest killers in India. It also emphasized that in low income countries, the most common desisting factor restraining the public from coming forward to help victims, is the apparent fear of being involved in police cases. There is need to build confidence amongst the public to help road accident victims. Bystanders should not be insisted to divulge their personal particulars or detained in the hospital for interrogation. People are hesitant to render immediate help to the road accident victims. The victims lay wounded on the road for some time till the arrival of police. Delay rendering medical help in such cases sometimes is fatal. Good Samaritans have the fear of legal consequences, involvement in litigation and repeated visits to police station. There is urgent need to tackle these issues. There is need to establish legal framework so that Good Samaritan is empowered to act without any fear of adverse consequences or harassment. Save life must be the top priority.

Objectives of the Judiciary:
The objectives and functions of the Judiciary include the following:
to ensure that all persons are able to live securely under the rule of law;

to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and

to administer the law impartially among persons and between persons and the State.”

Public Perception And Good Samaritan Laws
Public Perception on Road Safety
86% of all respondents considered the issue of road safety to be very important. The same was reflected in city-wise results, wherein majority took road safety to be a very important issue. At the same time, 80% of all road users feel unsafe on Indian roads and 82% pedestrians feel unsafe while crossing the road or walking on the road. 49% respondents admitted to having witnessed a fatal road crash and 44% claimed that they had witnessed a road crash in which at least one person was seriously injured. Similarly, 31% respondents had a family member who was seriously injured in a road crash and 16% had a family member who was killed in a road crash. This shows that possibly because a majority of Indians have experienced a road crash, seen one or lost a dear one to the same; most of them take Road Safety to be an issue of critical importance

Public Perception on Enforcement
The survey results by the Safe Life Foundation clearly reflect that increased certainty of being apprehended for violations by way of electronic enforcement, has a deterrent effect on road user behaviour. Affirming this tendency, 54% respondents strongly felt that they would follow traffic rules in areas with camera-based enforcement and 64% also felt that camera-based enforcement will lessen corruption and increase prosecution of traffic offences. As far as helmet-wearing practice in two-wheeler riders is concerned, 42% stated that they did not wear one at all. Out of the 58% respondents who did wear helmets, 84% did so to avoid head injury, 39% did so to avoid fines and 37% did so because it was a part of the traffic rules. This suggests that prevention of injury and monetary punishment are two major factors for people to observe helmet-wearing practice. Survey results for helmet-wearing practice while riding pillion show that 52% respondents admitted to not wearing one. Out of the 48% respondents who did wear helmets while riding pillion, 85% did so to avoid head injury and 38% did so because it was a part of the traffic rules. Contrastingly, out of the 52% respondents who did not wear a helmet if they were pillion riders, 58% did so because it wasn’t mandatory.

Public Perception on Education
It was appalling to note that 59% respondents admittedly did not give a test to get a driving license. 88% in Agra, 72% in Jaipur, 64% in Guwahati, 54% in Delhi and Kochi, 50% in Mumbai and 48% in Kolkata and Bengaluru also admitted to not having given a test for acquiring a license. When it comes to knowledge of the key concepts of driving like the three-second rule, hydroplaning and blind spots; only 12%, 7% and 8% admitted to being aware of each respectively. Majority in all cities surveyed also admitted of not being aware of these three fundamental rules of driving.

Public Perception on Emergency Care
The confidence that Indian road-users have on the existing Emergency Care response is clearly minimal, with just 26% respondents feeling very confident about receiving immediate medical help if they met with a road crash in their city and only 13% being very confident of getting immediate help if they made a call to the concerned emergency services. Survey by the SLF results also reveal that only 60% respondents were aware about the local ambulance numbers and 77% were aware about the emergency police number in their respective cities. 56% respondents also strongly felt that ambulances should follow minimum safety standards to ensure safer transportation of victims.

Incentivization
Stringent punishment for faulty road design and engineering
Development of a standardised accident investigation methodology incorporating condition of roads
Independent road safety audits
Punishment for contractors and agencies in case of discovery of fault.

Recent Developments
The sole statute governing Road Safety in India, the Motor Vehicles Act, 1988 (MVA) has been largely ineffective in tackling the rising road crash deaths in the country. Due to the lack of a comprehensive and administrative framework for Road Safety in India, most interventions to tackle this epidemic have remained unsustainable. In the Monsoon Session of Parliament (July-August, 2016), the Government of India introduced the Motor Vehicles (Amendment) Bill, 2017. The Bill aims to amend 68 out of 223 sections and insert 28 new sections in the MVA, 1988, in order to fill the legislative gaps existing in the current framework. The Motor Vehicles (Amendment) Bill, 2017 was passed by Lok Sabha on April 10, 2017 and now awaits passage by the Rajya Sabha.

Conclusion-
How safe do Indians feel on roads?
Given the high mortality, morbidity and overall socio-economic impact of road crashes in India, issues surrounding road safety occupy the minds of the general public significantly. 86% of the respondents believe that the issue of road safety is very important. While overall, 80% of all road users feel unsafe on Indian roads, 82% of pedestrians feel unsafe while crossing the road or walking on the road.

Good Samaritan laws point society in a proper direction and act as a “moral compass”. In other words, human life must be valued at all times over all things and one must help those whose life is in danger. Most of the people who are willing to help out in such a situation have various fears that have been mentioned above. In such circumstances it is the duty of the State to ensure that adequate protection and rights are given to the persons willing to help those in need. It is pertinent to note that the Bill enumerates the rights of the Good Samaritan but does not impose any duties on the bystanders.

The emphasises should be on the importance of spreading awareness about the rights of the Good Samaritan. Even though Clause 5 (1) of the Bill states that a person will not be liable with respect to anything done to save life or property of the victim, this clause is very general fails to emphasise on the basic right of immunity. Just like it is clearly provided that hospitals and clinics are immune from liability in case any complication arises during the treatment (except in the case of negligence), in the same way the Law must specify that the Good Samaritan will be immune from any liability in case something happens to the victim after or during the emergency response of the Good Samaritan which would include calling the Police or ambulance or taking the victim to the hospital. This is extremely necessary because apart from the fear of payment for treatment or being harassed by the Police, people also have the fear of causing more harm.

Since the accidents and incidents of crime are at a rise in India, there is an urgent need to enact the legislation that would deal with the protection of the Good Samaritans. The Guidelines issued by the MoRTH along with the Standard Operating Procedures are only applicable to accidents on roads and highways. The existing guidelines and provides various rights to the person who comes forward to help victims of accidents or incidents of crime.

Among the reasons for India’s unacceptably high rate of road accident fatalities is the inability to get timely medical treatment for victims. official statistics put the number of people who died on the roads in 2015 at 1,46,000. It is reckoned that a larger percentage of them could have been saved had emergency medical treatment been provided immediately. In a report in 2006, the Law Commission estimated that 50 per cent of accident victims would have survived had they got medical attention within an hour. A major impediment to victims obtaining timely help is the fear among bystanders that they could be embroiled in a police investigation or be subjected to harassment due to the legal procedures involved if they chipped in to provide first-aid, ferry the injured to hospital or even call for medical or police assistance. This is why a ‘Good Samaritan’ legal protection is vital. Parliament has not enacted such a law, but thanks to the Supreme Court and a campaign by voluntary organisations, the Centre notified guidelines last year for the protection of those who help accident victims. In January 2016, a Standard Operating Procedure to make these guidelines work was introduced. Now, the Union Road Transport Ministry has added a significant clause under which a Good Samaritan’s affidavit will have the legal force of a statement. If a statement is required, it should be recorded in a single examination. This is applicable only to those who want to be witnesses, for the guidelines say the police should not compel them to disclose their particulars or to be witnesses.

Since many accidents take place along highways, access to the nearest medical facility is not always easy. A factor that discourages bystanders from coming forward to take victims to a hospital is the fear that they would be made to pay admission costs in a hospital or detained there for long hours. A year ago, the Union Health Ministry directed hospitals that they should not detain those who bring accident victims for admission. They should not be required to pay for admission or registration, or asked intrusive questions beyond basic particulars such as names and addresses. Though such guidelines and simplified procedures are welcome, much more needs to be done to encourage people to get involved in the rescue of accident victims. So far, only a few State governments have adopted the Good Samaritan guidelines. All States must get actively involved in their implementation. For it is from the regional domain that those who deal with such situations — the police, doctors, transport officials and magistrates — are drawn. A good deal of sensitization is needed, and it may help if State governments drew up their own set of rules so that they become committed stakeholders in the cause.

Law Article in India

You May Like

Lawyers in India - Search By City

Delhi - Chandigarh - Allahabad - Lucknow - Gurgaon - Faridabad - Noida - Ghaziabad - Jalandhar - Agra - Ranchi - Jodhpur - Mumbai - Pune - Nagpur - Surat - Ahmedabad - Indore - Belgaum - Jalgaon - Nashik - Vapi - Jamshedpur - Kolkata - Siliguri - Durgapur - Guwahati - Dimapur - Ludhiana - Jaipur - Janjgir - Amritsar - Khandwa - New Delhi - Chennai - Bangalore - Hyderabad - Visakhapatnam - Eluru - Cochin - Coimbatore - Pondicherry - Rajkot - Bengaluru - Trivandrum

LawArticles

Case Note on The state Cyber Cell v Yoge...

Titile

This case deals with the Section 509 of Indian Penal Code, 1860 and Section 67 and 67A of Informa...

A Legal framework about Child Prostitution

Titile

Child prostitution is a significant global problem but in India it has not received adequate at...

Infringement of Trademark Rights and Rem...

Titile

The paper clearly attempts about the study of the infringement of trademark rights and remedies...

Protecting Marriages Across Castes

Titile

Protecting marriages across castes. Eight years after the National Commission for Women (NCW) ...