REVAMPING ROAD SAFETY: GOOD SAMARITAN LAW IN INDIA.

THIS ARTICLE WAS WRITTEN BY CHARITHA K.P., A STUDENT OF NALSAR, HYDERABAD. 

Death is something which comes out of the blue. It is especially unforeseen when it occurs due to sudden negligence of some other person, as in cases of road accidents. In the last ten years, over 13 lakh people have been killed in road accidents in India. Over 1.47 lakh were killed and around 5 lakhs were gravely injured in 2017 alone.[1]

50% of road accident victims die in the first 15 minutes due to serious cardiovascular or nervous system injuries. However, the rest of deaths can be prevented by providing medical assistance to the victim within the ‘golden hour’. Golden hour refers to the first hour after a lethal injury during which medical assistance is much needed as there is a high probability to prevent death.[2] Bystanders play a pivotal role in saving lives in the absence of established medical emergency services. But the victims do not get medical attention at this crucial period as the bystander fears being harassed by the police or questioned by the hospital authorities if he helps the victim. The helper is also forced to attend court proceeding and police stations if any case is made.

With increasing number of accidents happening in recent days, the importance of role played by the person who has the possibility to reduce its after-effects, i.e., the Good Samaritan is also increasing. According to Save Life Foundation, ‘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.[3]

On March 30, 2016, the Supreme Court of India gave ‘force of law’ to the guidelines issued by the Ministry of Road Transport and Highways for the protection of Good Samaritans making them legally applicable across the country.[4] But even then, there is no central law formulated to give effect to the same. Karnataka, on August 2018, became the first state in the country to have a good Samaritan Law in place by passing the Karnataka Good Samaritan and Medical Professional (Protection and Regulation during emergency situations) Bill, 2016. As the subject matter of the bill falls under entries 1,2 and 6 of List II and entries 25 and 26 of list III of the Seventh Schedule, the State Legislature is competent to enact such laws.

The Judgement

In 2012 Save Life Foundation, a non-profit and non-governmental organisation filed a PIL under article 32 of the Indian Constitution for ‘the development of supportive legal framework to protect Samaritans i.e. bystanders and passers-by who render the help to the victims of road accidents.’ The petitioner had also drafted recommendations to fill in the lacunae in the Motor Vehicles Act, and other laws governing road safety.[5] The Court accepted that the right to life enshrined in Article 21 includes the right to safety of persons while travelling on the road and recognised the establishment of immediate medical services along with providing legal immunity and preventing harassment of good Samaritans by the police. The court relied on WHO’s report from 2004 on ‘Road Traffic Injury Prevention’ which states how road accidents will become one the major killers in India by 2020. The report also places emphasis on the fact that one of the major reasons discouraging the public from helping victims in low income countries is the manifest fright of legal consequences, involvement in litigation and reported visits to police station.

Laws in different countries

The Parliament of England and Wales has passed the Social Action, Responsibility and Heroism Act 2015 which lays down specific facts to be taken into account by the Court while hearing a case of negligence or breach of duty. Accordingly, section 2 of the said act makes it mandatory for the Court to contemplate whether the person alleged for the negligence was acting for the benefit of society[6] and section 5 of the said act further makes it mandatory for the Court to consider if the alleged person was acting heroically by intervening in the emergency situation to help an individual in danger.[7] Many Australian states also provide for protection to good Samaritans.[8] Similarly, many Canadian states like British Columbia, Ontario and Alberta offer protection to good Samaritans. In Ontario, Section 2(1) of the Good Samaritan Act 2001 states that except in the cases of gross negligence, a rescuer is not to be held liable for damages following his acts during assistance in peril.[9] Emergency Medical Aid Act, Volunteer Services Act and Good Smartian Act provides protection for good Samaritans in Alberta, Nova Scotia and British Columbia. Section 51D of the Civil Law (Miscellaneous Provisions) Act 2011 of Ireland advocates protection of Good Samaritan by providing that a good Samaritan will not be held liable in negligence for any act done to assist person in serious peril.[10] In USA, States of Alaska, Arkansas, Arizona, Alabama, California and New York along with many other states provide similar protection to good Samaritans if he/she is acting in good faith.

Good Samaritan Law in India.

In 2004, the Department of Road Transport and Highways had forwarded Circulars issued by the Delhi police in order to boost confidence in the public for assisting road accident victims to the States and Union Territories. The circular provided that in case a person who brings the victim to the hospital is hesitant to give his particulars he should not to forced to reveal the same and shall not be detained in the hospital for interrogation.

Guidelines issued by the Ministry of Transport and Highways

Following Supreme Court’s order to publish guidelines for bolstering the acts of Good Samaritans until an appropriate legislation made by the Union Legislature,[11] the Ministry of Road Transport and Highways issued a notification on 12th May, 2015 laying down ‘Good Samaritan Guidelines’. The guidelines had to be followed by hospitals, police and all other authorities for the protection of Good Samaritans. The notification lays down 15 guidelines.

Para 1 (1) provides that a good Samaritan, be it a bystander or an eyewitness of the incident, may take the victim to the nearest hospital and he/she should be allowed to leave immediately unless if he/she is an eyewitness, then by providing address. The word ‘may’ denote that saving the victim is not an obligation but a choice.

Para 1 (2) provides that the good Samaritan shall be suitably rewarded to encourage the public to come forward to provide assistance to victims of road crash by the authorities according to specifications of the State Government.

Para 1 (3) provides that there shall be no civil or criminal liability imposed on the good Samaritan.

Para 1 (4) provides that the person making a phone call to the police or the medical centres to inform about the injured person on the road shall not be forced to provide his name or personal details on the phone or in person. Further, para 1 (5) provides that the disclosure of personal information of the good Samaritan in the Medico Legal Case (MLC) shall be completely voluntary and optional.

Para 1 (6) provides that strict disciplinary or departmental action shall be taken by the government against any public authorities who coerce the good Samaritan to reveal his/her name or personal details.

Standard Operating Procedure

In accordance with para 1 (7) and para 1 (8) of the notification dated 12th May, 2015, the Ministry of Road Transport and Highways issued another notification on 21th January 2016 which provides for Standard Operating procedures. According to this notice any person, but an eyewitness, making a phone call to the police control room shall not be coerced to reveal his/her name or personal details[12] and upon arrival at the scene, the police officer shall not compel the good Samaritan to disclose his/her name or personal details in the Record Form or Log Register.[13] The good Samaritan can become a witness out of his own will and cannot be compelled by any Police official. [14] The good Samaritan cannot be detained to any further investigation unless he chooses to be a witness.[15]

Examination by the Police

If the good Samaritan voluntarily choses to be a witness, his examination by the investigating officer shall take place at a time and place of his/her convenience and the investigating officer shall be dressed in civil dress, unless the good Samaritan chooses to visit the police station.[16] If it is not possible to conduct the investigation at a time and place of his/her convivence and the investigating officer calls the good Samaritan to the police station, then the reasons for the same shall be recorded in writing.[17]

In case the good Samaritan chooses to visit the police station, he shall be examined in a single examination without causing any unreasonable delay[18] and if the good Samaritan communicates in a language in which the investigating officer has no expertise, then the officer has to make to make arrangements for an interpreter.[19] When a Good Samaritan declares himself to be an eye-witness, his evidence can be given in the form of an affidavit under section 296 of the Code of Criminal Procedure, 1973[20] and any statement made or affidavit given by the Good Samaritan shall be recorded in a single examination by the investigating officer.[21]

In case the attendance of the good Samaritan cannot be procured without delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, or his examination is unable to take place at a time and place of his convenience, the Court of Magistrate may appoint a commission for the examination of the Good Samaritan in accordance with section 284 of the Code of Criminal Procedure, 1973 (2 of 1974) on an application by the concerned.[22]

Further, it is the responsibility of the Superintendent of Police or Deputy Commissioner of Police or any other competent Police officer to ensure that the Standard Operating Procedure is implemented with immediate effect.[23]

Guidelines issued by the Ministry of Health and Family Welfare

Subsequently in 2015, the Ministry of Health and Family Welfare issued a notification prohibiting all registered public and private hospitals from detaining the good Samaritan or demand his to pay registration and admission costs unless the good Samaritan is a relative or family member of the victim and the victim has to be treated immediately.[24] It further reiterates the provision provided in the notification issued by the Ministry of Road transport and Highways regarding right of the good Samaritan to leave immediately and voluntary entry in the MLC form.

If a doctor refuses to treat the injured person brought by the good Samaritan, then shall be liable for “professional Misconduct” under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002[25] and disciplinary action shall be initiated against the doctor under the said Regulation.[26] If the good Samaritan desires then the hospital shall provide an acknowledgement letter confirming that the victim was brought to the hospital at a particular time and from a particular place.

Are Guidelines law?

When there is absence of any law on a particular area or when the existing laws are applied ineffectively, then the Supreme Court can issue guidelines and directions under Article 32 read with Article 142 of the Indian Constitution. In Vishaka v State of Rajasthan, one of the landmark cases relating to sexual harassment of working women, the Supreme Court has observed that it is the duty of the court to issue guidelines in absence of legislation.[27] Thus the power of the court to issue guidelines is well-settled practice and this practice is essential to fill the void in the absence of suitable legislation to cover the field. It is further held that in a situation where the field is open and uncovered by any government policy, to guide and control everyday governmental action, surely, in the exercise of jurisdiction under Article 142 of the Constitution, parameters can be laid down by this Court consistent with the objects enumerated by any of the provisions of Part IV. Such an exercise would be naturally time-bound i.e. till the legislature or the executive steps in to fulfil its constitutional role and authority by framing an appropriate policy. Hence, the guidelines issued by the courts in the area od good Samaritan will have the force of Law under Article 141.

Conclusion:

The Supreme Court’s Judgement and the protection it provides to good Samaritans is a significant milestone in promoting altruism in India. However, lack of awareness and ineffective implementation of the law acts as a huge obstacle. Proper implementation of this judgement can happen only if confidence is built amongst the public that the State will protect them for their altruistic act and encourage public to transform into active rescuers from passive bystanders.

It has almost been 2 years since the judgement was passed, but according to a survey conducted by Save Life Foundation in November 2018, only 16% people are aware of the good Samaritan Law. None of the hospitals surveyed had a good Samaritan Charter published at their entrance which is clear violation of the Supreme Court Judgement. A huge number of Medical professionals agreed that there is no Good Samaritan Law committee at their workplace and there is no action taken against erring professionals who violate the law.  Hence, the awareness among people about this law is a serious challenge. This awareness can be brought by the State government by transforming the Judgement into a State-specific law which will lead way to form appropriate budget and establishment of required systems for better implementation of the law. Karnataka’s act of passing the bill in this regard is a hope for a better future.

 

[1] Impediments to Bystander care in India, National Study on Impact of Good Samaritan law by Safe Live Foundation

[2] Campbell, John (2018), International Trauma Life Support for Emergency Care Providers, 8th Global ed., Pearson. P. 12.

[3] https://savelifefoundation.org/gsl-microsite/

[4] Savelife Foundation & Anr Vs Union of India & Anr, AIR 2016 SC 1617

[5] Ibid

[6] Section 2, the Social Action, Responsibility and Heroism Act, 2015

[7] Section 5, the Social Action, Responsibility and Heroism Act, 2015

[8] Good Samaritan legislation and scope of practice, available at: https://emergencylaw.wordpress.com/2015/03/27/good-samaritan-legislation-and-scope-of-practice/

[9] Section 2(1), the Good Samaritan Act, 2001

[10] Section 51D, Civil Law (Miscellaneous provisions) Act, 2011

[11] Order dated 29th October 2014

[12] Para 1 (2)

[13] Para 1 (3)

[14] Para 1 (4)

[15] Para 1 (5)

[16] Para 2 (2)

[17] Para 2 (3)

[18] Para 2 (4)

[19] Para 2 (5)

[20] Para 2 (6)

[21] Para 2 (7)

[22] Para 2 (8)

[23] Para 3

[24] Pt. Parmanand Khatara vs Union of India & others, (1989) 4 SCC 286.

[25] Chapter 7, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002

[26] Chapter 8, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002

[27] (1997) 6 SCC 241

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