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Good Samaritan Law - Protecting the Bystanders from Liability

Rising cases of road accidents have significantly increased the number of deaths around the world. In the last ten years, 13 lakh people have been killed due to road crashes in India.[1] There have been numerous instances were a victim of such road accident might have saved his life if timely aid was provided. In such circumstances, Samaritans play a major role to help anyone in peril regardless of the consequences.

For example, when a person gets seriously injured in a road accident, there are passersby who stop and others who witness the accident but no one usually come forward to help because they fear of getting into unnecessary legal hassles and procedures. And as a result, hundreds of people die every day in road crashes as they are not provided with immediate medical help.

According to a study the current annual death toll on Indian roads is over 1,40,000 and over 70,000 lives can be potentially be saved if bystanders come forward to help.[2] India has one of the highest road crash injuries and deaths in the world. Road crashes not only lead to loss of life, they also cause debilitating injuries and huge financial losses, both to the victims and to the nation. The public health and development of the country suffers massively as the number of road crash injuries and deaths continue to grow.[3]

SamaritansŁ a crucial term which most of the people are unaware of, typically means a bystander-i.e. bystanders and passers-by who render help to the victims of road accidents.Ł[4] Samaritan is also defined as ťa person who is generous in helping those in distress.Ł[5]

Right to Life is enshrined in Article 21 of the Constitution of India and includes right to safety of persons while travelling on the road, immediate medical assistance is required to be provided as a necessary corollary with adequate legal protection. A Good Samaritan is a person who in good faith, without expectation of payment or reward and without any duty of care or special relationship, voluntarily comes forward to administer immediate assistance or emergency care to a person injured in an accident, or crash, or emergency medical condition, or emergency situation.[6]

Good Samaritans can play a prominent role during the Golden Hour of an Injury, Golden Hour means the time period lasting one hour following a traumatic injury during which there is highest likelihood of preventing death by providing prompt medical care.Ł[7] According to the World Health Organization (WHO) in its report, Bystanders are often present when an injury occurs or they quickly reach the scene.

The first minutes after a serious injury occurs represent a window of time during which potentially life-saving measures can be initiated, such as opening an obstructed airway, assisting breathing and applying direct pressure to a wound to reduce external bleeding. The likelihood that an injured individual will live or die depends on the timeliness of these actions. The odds of survival may be greatly enhanced if bystanders promptly initiate first aid.Ł[8]

Therefore, a bystander can help the road accident victim by providing immediate assistance and taking them to the nearest hospital. But the bystander due to fear of harassment by the hospital authorities, police officers or prolong court proceedings tend to neglect the victim of the road accidents and choose to stay out of the picture instead of saving the life of the victim. All these problems highlight the need for necessary awareness and medical education of the people to reduce the number of road accident deaths.

Judiciary viewpoints on Good Samaritan Law- India

The judiciary has played a profound role in the introduction of the Good Samaritan Law in India. For the first time in 1989 the Hon'ble Supreme Court in a landmark judgment of Pt. Parmanand Katara vs. Union of India & Ors.[9] based on the refusal of hospitals to grant emergency relief to patients, who were injured in accidents and were in emergency medical condition, emphasized thatArticle 21 of the Constitution casts the obligation on the State to preserve life and there can be no second opinion that preservation of human life is of paramount importance.

That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.Ł It was also held that there is a professional obligation on every doctor whether at a government hospital or otherwise to extend his services with due expertise for protecting life and there is no legal impediment for a medical professional while attending an injured person needing his medical assistance immediately.

The Supreme Court reiterated its views in Paschim Banga Khet Mazdoor Samithi v. State of West Bengal[10] wherein it was held that ťIn a welfare state the primary duty of the Government is to secure the welfare of the people.

Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare stateŁ and similarly the National Consumer Redressal Commission in Pravat Kumar Mukerjee v. Ruby General Hospital held that a hospital is duty bound to accept accident victims and patients who were in critical condition and that it cannot refuse treatment on the ground that the victim is not in a position to pay the fee or meet the expenses or on the ground that there is no close relation of the victim available who can give consent for medical treatment.[11]

In 2012, Save LIFE Foundation (an independent, non-profit, non-governmental organization committed to improving road safety and emergency medical care across India) filed a Public Interest Litigation in the HonÖble Supreme Court of India requesting the court to insulate Good Samaritans who come forward to help the injured from ensuing legal and procedural hassles.

On October 29, 2014, the Supreme Court in the Writ Petition by Save life Foundation, directed the Central Government to issue the Guidelines to protect Good Samaritans until appropriate legislation was made by the Central Government. Consequently, in a Gazette Notification dated May 12, 2015, Ministry of Road Transport and Highways (MoRTH) notified the guidelines for the same.

As a result in a landmark move on 30th March 2016, the HonÖble Supreme Court of India via Article 141 of the Indian Constitution provided the śforce of lawÖ to the said Guidelines issued by the Central Government by making it legally binding on all States and Union Territories in India in effect, instituting a Good Samaritan Law for India.

The Motor Vehicles (Amendment) Act, 2019

Recently The Motor Vehicles (Amendment) Act, 2019 has been passed to amend the Motor Vehicles Act, 1988 in order to provide for road safety.[12] The Act specifically lays down a provision for the protection of the Good Samaritan by insertion of a Section 134A which reads as:
  1. A Good Samaritan shall not be liable for any civil or criminal action for any injury to or death of the victim of an accident involving a motor vehicle, where such injury or death resulted from the Good Samaritans negligence in acting or failing to act while rendering emergency medical or non-medical care or assistance.
  2. The Central Government may by rules provide for the procedure for questioning or examination of the Good Samaritan, disclosure of personal information of the Good Samaritan and such other related matters.

Explanation:
For the purposes of this section, Good SamaritanŁ means a person, who in good faith, voluntarily and without expectation of any reward or compensation renders emergency medical or non-medical care or assistance at the scene of an accident to the victim or transports such victim to the hospital.

Guidelines for Protection of Good Samaritans

The Ministry of Road Transport and Highways (MoRTH) had laid down guidelines for the hospitals, police and all other authorities in order to ensure the protection of Good Samaritan.[13] It provides that, the bystander or a Good Samaritan including the eyewitness of a road accident may take an injured person to the nearest hospital, and they can leave immediately except after furnishing address of the eye witness and no questions shall be asked to the bystander. Further, in order to encourage other citizens to come forward to help the road accident victims, it is laid down that they shall be suitably rewarded or compensated by the authorities in the manner as may be specified by the State Governments and no civil or criminal liability will lie against them.

The bystander, who makes a phone call to the police or emergency services informing them about the person lying injured, cannot be compelled to reveal his personal details. It is specifically provided that any disclosure of personal information by the bystander shall be voluntary and optional including in the Medico-Legal Case (MLC) form provided by the hospitals.

And in case the bystander is coerced or intimidated by public officials to disclose personal details, a strict disciplinary or departmental action can be initiated by the government. In case a bystander or good Samaritan, who has voluntarily stated that he is also an eye-witness to the accident and is required to be examined for the purposes of investigation by the police or during the trial, such bystander or good Samaritan shall be examined on a single occasion and the State Government shall develop standard operating procedures (SOP) to ensure that bystander or good Samaritan is not harassed or intimidated by the police investigation or during the trial.

The method of examination may be either through commission[14] or formally through an affidavit[15]. In order to avoid the harassment of the bystander or the eye witness referred above during the examination, the guidelines provide for the extensive use of video conferencing.

Guidelines for registered public and private hospitals

As directed by the Central Government, the Ministry of Health and Family Welfare issued guidelines[16], stating that all registered public and private hospitals are not to detain bystander or good Samaritan or demand payment for registration and admission costs, and they can do so only if the good Samaritan is a family member or relative of the injured and the injured is to be treated immediately in pursuance of the order Hon'ble Supreme Court in Pt. Parmanand Katara vs Union of India & Ors.[17]

These guidelines specifically provided that the doctor need to render necessary assistance and lack of response by a doctor in an emergency situation pertaining to road accidents, where he is expected to provide care, shall amount to "Professional Misconduct".[18]

Under the guidelines, with respect to demanding payment from bystander it is directed that all hospitals shall publish a charter in Hindi, English and the vernacular language of the State or Union territory at their entrance stating that they shall not detain bystander or Good Samaritan or ask depositing money from them for the treatment of a victim. Further on the desire of the bystander, the hospital shall provide an acknowledgement confirming that the injured person was bought to the hospital at such time and place of such occurrence. Lastly, the implementation of these guidelines is mandated to the public and private hospitals and can be subject to appropriate action by the concerned authorities on non compliance or violation of the guidelines.

Standard Operation Procedures for the Examination of Good Samaritan

The MoRTH issued a further notification as on 21st January 2016[19] laying down Stanadard Operation Procedures for the examination of Good Samaritans by the Police or during the trial which included that the Good Samaritan shall be treated respectfully and without any discrimination on the grounds of gender, religion, nationality, caste or any other grounds. Any person except an eye witness making a phone call to the police station shall not be compelled to reveal personal details.

The police officer on arrival at the scene shall not compel the Good Samaritan to disclose his / her personal details in the record form or log register. Further, the option of becoming a witness in the matter shall solely rest with the Good Samaritan and if he chooses not to be, no further question shall be asked to the Good Samaritan.

In case a Good Samaritan so chooses to be a witness, he shall be examined with utmost care and respect and without any discrimination and the investigation shall be conducted at the time and place of his convenience such as his place of residence or business, and the investigation officer shall be dressed in plain clothes, unless the Good Samaritan chooses to visit the police station. In case such investigation cannot be conducted at the time and place of his convenience the good Samaritan will be required to visit the police station, the reasons for the same to be recorded in writing and shall be examined in a time-bound manner under a single examination. Lastly, the Investigating Officer shall arrange for an interpreter in case the Good Samaritan speaks a language other than the language of the Investigating Officer or the local language of the respective jurisdiction.

Implementation of the Guidelines

A multi-city survey conducted by Save Life Foundation on bystander care in India 2018 revealed some staggering results. According to the latest Impediments to Bystander Care in India: National Study on Impact of Good Samaritan LawŁ: 84% people are not aware of the Good Samaritan Law, which means the majority of the population is unaware of such guidelines in force. Further 76% of medical professionals reported that no action was taken against professionals who did not comply with the Good Samaritan Law and 59% Good Samaritans reported being detained by police despite the law. [20]

Therefore the government has certainly failed to address the non-compliance of the guidelines since there is no authority which establishes a grievance mechanism and penalizes those not complying with the law. The study also reveals that the implementation of the Good Samaritan Law is a major challenge, given the low levels of awareness; interventions must be centered on raising awareness about the law amongst citizens and key stakeholders. Since 88% of respondents expressed the need for a supportive legal environment to enable Good Samaritans to come forward and help injured victims on the road.[21]

The study further highlighted that a two-pronged approach to increase awareness at both national and regional level should be employed throughout the country. An integral aspect of people exercising their rights as Good Samaritans is being aware of their rights. New and innovative campaigns to educate people should be conducted by different stakeholders including State Governments. Different Government departments must launch rigorous training sessions to align responsibilities among hospitals and police officials. Due training needs to be conducted to train these officials on interacting with Good Samaritans.

Among the states, Karnataka due to the rising incidents of accidental deaths enacted a legislation to give legal protection to good Samaritans. The Karnataka Good Samaritan and Medical Professional (Protection and Regulation During Emergency Situations) Act 2016 aims to provide protection to Good Samaritans and Medical Professionals from civil and criminal liabilities, by establishing a supportive legal environment and imposing obligations on hospital and clinics. Further the Act in detail sets out the duties of the Hospitals, establishment of Good Samaritan Fund, facilitation of legal proceedings and appointment of an appropriate authority by the government.

Global perspective on Good Samaritan Law

Several countries have enacted laws on Good Samaritan across the globe. In the majority of United States (U.S) jurisdictions, as well as England and Wales and the Peoples Republic of China any person assisting the injured party is provided protection from civil and/or criminal liability and it does not impose an affirmative obligation as part of the Good Samaritan statutes.[22]

In the United States the Good Samaritan Law varies based on its jurisdiction. Florida has a Good Samaritan Act in force which aims to provide immunity from civil liability to any person who gratuitously and in good faith renders emergency care or treatment.[23] Similar protection against civil damages is provided to good Samaritans in different states laws of Alabama, Alaska, Arizona, Arkansas, California and New York of the USA.[24]

In England and Wales, the Parliament has enacted the Social Action, Responsibility and Heroism Act 2015 which provides for certain factors to be considered by the Court while hearing an action for negligence or breach of duty. Section 2 of the Act provides that the court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.Ł Section 4 of the Act further provides the court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.Ł

China adopted the Good Samaritan Law in 2017 in the event of rising road accidents, clause 184 of Civil Law General Principles was inserted to provide protection; ťif the rescuer voluntarily carries out emergency relief which has caused damages to the persons in danger, the rescuer shall not bear Civil LiabilityŁ. That is the rescuer attempting to help the injured person will not be held liable in any circumstances. However, the major problem in China had been that person giving aid to the injured person is falsely accused by the victim causing the injury and the legal protection provided under the law does not aim to solve this problem.

In Australia, each Australian state and territory has Good Samaritan provisions as part of civil liability legislation. In New South Wales and Victoria, a Good Samaritan is protected from personal civil liability with respect to anything done in a state of emergency or accident by virtue of Section 5 of Civil Liability Act 2002 and Section 31A-31D of Wrongs Act 1958 respectively. Similarly, in South Australia (SA), the Good Samaritans are protected under section 74 of the Civil Liability Act 1936 (SA).

In Canada protection to Good Samaritans is provided in various states such as states of Ontario, Alberta and British Columbia. In Ontario, the Good Samaritan Act 2001, by Section 2 (1), provides that Despite the rules of common law, a person described in subsection (2) who voluntarily and without reasonable expectation of compensation or reward provides the services described in that subsection is not liable for damages that result from the persons 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.Ł Similar protection is provided in states of Alberta, British Columbia and Nova Scotia by Emergency Medical Aid Act, Good Samaritan Act and Volunteer Services Act respectively.[25]

Law on Duty to rescue

Good Samaritan Law shall not be confused with the duty to rescue. Duty to rescue creates an obligation/liability on a person to help the injured person. Duty to rescue is defined as ťa concept of tort law and refers to the duty of a person to rescue another who is in a dangerous situation.Ł[26] Such law is basically imposed for the bad Samaritan who by its inaction allows another to suffer harm and chooses not to provide aid in case of emergency.

Few countries have enacted a duty to rescue law to impose a statutory duty on negligent people to provide aid. France is one of the countries to impose the duty to rescue law and therefore under the French Law, It not only does seeks to exonerate the rescuer of any liability in the event of inappropriate help, but quite to the contrary it intends to punish ô both in criminal and civil law ô the bystander who during an accident does not intervene or help the victim when it poses no risk to the bystander or the third party.

Under article 223-6 of the Criminal Code it states that; Whoever voluntarily fails to provide to a person in danger the assistance, that without risk for himself or a third party, he could provide, either by his own actions, or by initiating a rescue may be punished by up to five years imprisonment and a fine of up to 75.000 Euro.Ł Such a failure to provide assistance to a person in danger and such breach of the duty to rescue constitutes not only a criminal offence but also a civil wrong.

Further Article 1382 of the Civil code, the cornerstone of the French Law of Torts, states: ťAny act which causes harm obliges the one whose fault caused the harm, to make reparation for itŁ. The French Law can thus appear very harsh against the rescuer, who faced with a difficult situation, has the dilemma of whether or not to act, and to face the possibility of being sued either for his actions or for his omission.Ö[27]

Quite similarly Germany is one of those countries under which it is a crime not to help those in danger. The law in Germany also follows the basic principle of Duty to RescueŁ wherein in the German Criminal Code, Section 323c specifically provides for Omission to effect an easy rescue Whosoever does not render assistance during accidents or a common danger or emergency although it is necessary and can be expected of him under the circumstances, particularly if it is possible without substantial danger to himself and without violation of other important duties shall be liable to imprisonment not exceeding one year or a fine.Ł

In Canada, all provinces with the exception of Quebec operate on the basis of English Common Law. Quebec follows a Civil Law wherein the principle of duty to rescue apply, under its Charter of Human rights and Freedom, Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.Ł[28]

In Finland, Section 15 (578/1995), of the Criminal Code of Finland provides for the punishment in case of ťNeglect of RescueŁ which states that ťA person who knows that another is in mortal danger or serious danger to his or her health, and does not give or procure such assistance that in view of his or her options and the nature of the situation can reasonably be expected, shall be sentenced for neglect of rescue to a fine or to imprisonment for at most six months.Ł[29]

The law on the duty to rescue and its implementation has been highly debatable across the world on whether such moral obligation can be imposed by law or not. On one hand, such a law clearly demonstrates the importance of the right to life which is protected by laws in so many countries and the need to protect human life is a prime duty of the State. On the contrary, it also leads to hindrance of personal choice in providing aid to the victim. The state can punish an act, but the state should not punish an omission because that amounts to monitoring an individual's personal moral code.Ł[30] However, strong implementation of Good Samaritan Law will reasonably eliminate the need of an obligation that is enforced under the duty to rescue law, as an active Good Samaritan will strive to protect a victim of a road accident if granted necessary protection.

Conclusion
It's not the source or the nature of the law that matters but the impact of that law on the freedom that is crucial.Ł[31]

Good Samaritan Law has been an important statutory enactment across the world. Several countries have laid down laws for Good Samaritans by protecting against civil and criminal liability. It is very essential to understand the gravity of importance behind the enforcement of such laws in different countries. Human life is important of all, and all steps should be undertaken to protect the same. The legislature has been a guiding light in major countries to ensure protection of Good Samaritans in order to encourage them to come forward and help, as it is well settled that if granted necessary protection, no one will hesitate to help a road accident victim as part of their moral duty.

In India since the past three years, guidelines on Good Samaritan Laws have been an integral part of our Indian Legal framework, but the problem of rising road accident deaths continues to persist. Amendment to the Motor Vehicles Act 1988 has helped us provide a strong legal force to the Good Samaritan Law and ensure road safety and protection. Necessary awareness among the people concerning the protection provided under the Good Samaritan Law and strict enforcement of guidelines by the Hospital and Police Officers can enable us achieve the objective of the amendment. Actions by people can include taking the victim to the nearest hospital, providing immediate medical help, making necessary arrangements during the Golden Hour, adapting rescue measures, encouraging bystanders to help etc.

As far as the law on duty to rescue is concerned India does not have any such obligation on people to help the victim of a road accident as part of their duty. But the basic moral duty as an individual to help a road accident victim remains. Therefore an effective legislation along with active Good Samaritans will ensure that deaths due to road accidents are reduced and the Good Samaritans are protected.

End-Notes:
  1. Savelife Foundation, (September 14, 2019, 10:00 AM) https://savelifefoundation.org/gsl-microsite/.
  2. Ibid.
  3. Save Life Foundation, Study on Rear Seat-Belt Usage and Child Road Safety in India, 11th January 2019, https://savelifefoundation.org/pdfs/Study-on-Rear-Seat-Belt-Usage-and-Child-Road-Safety-In-India.pdf
  4. Para 1, Savelife Foundation & another vs Union Of India & another, writ petition (civil) no.235 of 2012.
  5. Samaritan, Merriam-Webster dictionary, https://www.merriam-webster.com/dictionary/Samaritan.
  6. Ministry of Road Transport and Highways, Good Samaritan (September 14, 2019, 10:00 AM) http://morth.nic.in/good-samaritan.
  7. Section 12 A, The Motor Vehicles Act, 1988 (India).
  8. Sasser S,Varghese M, Kellermann A, Lormand JD. Prehospital trauma care systems, Geneva, World Health Organization, 2005.
  9. 1989 (4) SCC 286.
  10. 1996 (4) SCC 37.
  11. Law Commission Of India, 201 report on Emergency Medical Care To Victims Of Accidents And During Emergency Medical Condition And Women Under Labour, (September 14, 2019, 10:00 AM) http://lawcommissionofindia.nic.in/reports/rep201.pdf.
  12. The Motor Vehicles (Amendment) Act, 2019 No. 32 of 2019 (India).
  13. Ministry Of Road Transport and Highways, Notification, New Delhi, May 12, 2015, No. 25035/101l2014-RS.
  14. Section 284, The Code of Criminal Procedure, 1973.
  15. Section 296, The Code of Criminal Procedure, 1973.
  16. Guidelines for protection of Good Samaritans, Ministry of Health and Family Welfare, Notification, Aug. 24 2015, No. Z.28015/1/2015-H.
  17. Supra note 8.
  18. Chapter 7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002, Aug. 11, 2002.
  19. Ministry Of Road Transport and Highways (Road Safety) Notification, New Delhi, Jan. 21, 2016, No. RT-25035/101l2014-RS.-W.
  20. Save life Foundation, Impediments to Bystander Care in India-National Study on Impact of Good Samaritan Law, November 2018, (September 14, 2019, 10:00 AM) https://savelifefoundation.org/pdfs/Impediments-to-Bystander-Care-in-India-National-Study-on-Impact-of-Good-Samaritan-Law.pdf.
  21. Save life Foundation, Supra note 1.
  22. A research note by Dechert for Savelife Foundation, Good Samaritan Laws - A Comparative Study of Laws That Protect First Responders Who Assist Accident Victims, May. 2014, (September 14, 2019, 10:00 AM) https://www.trust.org/contentAsset/raw-data/7be34cce-ea0d-4c90-8b39-53427acf4c43/file.
  23. Good Samaritan Act; immunity from civil liability, Chapter 768, Negligence (Florida), United States.
  24. supra note 3, Para 4.
  25. supra note 3, Para 4.
  26. Duty to rescue, US Legal definition, (September 14, 2019, 10:10 AM) https://definitions.uslegal.com/d/duty-to-rescue/.
  27. The Good Samaritan Law Across Europe, By The Dan Legal Network, National Coodinators Committee, (September 14, 2019, 10:00 AM)
  28. https://www.daneurope.org/c/document_library/get_file?uuid=c09228f3-a745-480b-9549-d9fc8bbbd535&groupId=10103.
  29. Section 2, Chapter I Fundamental Freedoms and Rights, Charter Of Human Rights and Freedoms (Quebec).
  30. Section 15 (578/1995), Neglect of Rescue, The Criminal Code of Finland.
  31. Kathleen M. Ridolfi, Law, Ethics, and the Good Samaritan: Should There be a Duty to Rescue?, 40 Santa Clara L. Rev. 957 (2000), (September 14, 2019, 10:00 AM) https://digitalcommons.law.scu.edu/facpubs/114/.
  32. Supreme Court of India The Automobile Transport(Rajasthan) Ltd vs. The State of Rajasthan and Ors 1962 AIR 1406

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