Could the SARAH Bill create Good Samaritans?

The Social Action, Responsibility and Heroism  Bill (‘SARAH ’ – crazy name, ed!) has not so much divided opinion so far as passed unseen. There has been some bleating from the claims management industry, which suggests to me it must be on the right lines, but otherwise not a dickybird. But as it approaches its Second Reading it is worth examining it in a bit more detail. Where has it come from? What problem is it aiming to tackle? What is its chance of success? And should we support it?

A shabby attack on health and safety

Its antecedents are two-fold. First, it is part of a long-running, and frankly disreputable attack on the health and safety industry or, as some ministers and certain sections of the press would have it, the ‘elf and safety’ industry. When I hear people having a go at health and safety it always reminds me of critics of political correctness. What I ask is the alternative? An un-PC world of racism, homophobia and misogyny holds no appeal to me? Nor does a world which is cavalier with health and safety, and which all too often seems to be harking back to a ‘golden’, unregulated age of shoving children up chimneys.

But there is a second more respectable background to the Bill and one, which on balance, persuades me that it is worthy of support, and that is the hoary old chestnut of the compensation culture. Most people agree that it doesn’t actually exist; that there is no evidence of a massive increase in compensation claims in recent years. But just as the fear of crime is out of all proportion to reality, so the fear of being litigated against, runs way ahead of the facts.  And just as fear of crime can influence behaviour and lead to risk aversion – not going out at night, crossing the road when approached by a group of young people – so the fear of being sued can affect people’s willingness to get involved.

Facts and figures

The 2007 National Survey of Volunteering found that 47% of people who don’t volunteer said one of the main reasons why not was fear of being sued. Interestingly only 1% of volunteers who had stopped volunteering said they had done so because of concern they would open themselves to litigation, which reinforces the point that the issue is more one of perception than reality.

It is not only individuals who are risk averse. Organisations too, fearful that they might be held responsible if something should go wrong, may be persuaded to take the easy way out and cut back on risky activities, encouraged by insurers to err on the side of caution. Let’s be clear. We are not talking about encouraging organisations to take unnecessary risks with people’s safety. But a voluntary sector which is not prepared to take risks, to knock down doors, to challenge received wisdom and, in Professor Heinz Wolff’s redolent phrase, to offer the high of Vitamin R (or Vitamin Risk) to young people through well managed, but challenging volunteering opportunities, is not a sector worth its name.

To check if the issue is still live we carried out a quick poll of NCVO members last month. The results suggested again that whilst we must be careful not to overstate the scale of the issue there is a problem which is worth trying to do something about. Of the 500 plus organisations who responded to our quick poll 16% said they do not feel confident in managing the risk of litigation as a result of volunteer actions, with 1% saying they had been subject to a legal claim in the last two years as a result of the actions of volunteers.

Nudging people to volunteer

So what is the Bill aiming to do? Curiously it is not looking to change the Law but rather to influence behaviour through classic nudge tactics by sending a message to the courts that they should take into account the motivation behind the action when deciding on negligence claims; and perhaps by sending a message to would be Good Samaritans that they will be dealt with sympathetically if they are caught up in a litigation as a result of well-intentioned action undertaking with an altruistic impulse. Note, it is not saying that volunteers will be excused from a duty of care, but that judges will take into account the altruistic motivation in weighing the evidence.

Whether or not the Law should be meddling with human behaviour in this way is open to question as my colleague, Aidan Warner, examines in an entertaining blog post, so I’ll pass on this for the moment. But will it work? Many other countries have tried similar approaches, most recently Ireland which introduced a similar Law in 2011. Indeed the previous Labour administration in the UK introduced a similar provision in the Compensation Act of 2006 which it would appear (given the perceived need to introduce SARAH) has had little impact. Some countries – France, Germany, Italy – have gone further and introduced a requirement on people to get involved in crisis situations. Ireland decided not to go down this route on the rather sound grounds that to force someone to volunteer and then leave them open to litigation is perhaps pushing altruism too far! But whether any of these changes have made a jot of difference, I haven’t been able to tell. Please let me know if you have any evidence either way, and if I get a moment I’ll try a trawl of the literature myself and report back.

Re-setting the dial

But for the time being, and in the absence of any evidence to suggest otherwise, I am prepared to cautiously welcome the introduction of the SARAH Bill on the grounds that it is unlikely to be able to do any harm and might well do some good. That it might just help to re-set the dial between risk management and protection on the one side, and acceptance of the individual and societal benefits of taking risks on the other; and an acceptance that with the best will in the world, and with all best practice in place accidents (as Elvis Costello once said) will happen. No harm, some good? Perhaps not a bad test for any legislation.