“Unconscionable – ‘assisted dying’ without the right to opt out” by Mary Neal
A proposed law on assisted dying, introduced by Liam McArthur, is due for a final vote in the Scottish Parliament before the end of March. However, serious legal and professional concerns about the Bill remain.
In an article published on 24 February 2026, “Unconscionable – ‘assisted dying’ without the right to opt out,” Dr Mary Neal, reader in law at the University of Strathclyde, looks at the growing problems with the proposed law. She argues that the Bill cannot provide effective legal protection for healthcare professionals who wish to opt out of involvement in assisted dying and highlights significant unresolved questions about legislative competence and conscience rights.
Dr Neal notes that a number of major health organisations have written to MSPs and Scottish ministers expressing concern, including:
- Association for Palliative Medicine (Scotland)
- Medical and Dental Defence Union of Scotland
- Royal College of General Practitioners Scotland
- Royal College of Physicians and Surgeons of Glasgow
- Royal College of Psychiatrists in Scotland
- Royal College of Surgeons of Edinburgh
- Royal Pharmaceutical Society
In addition, the Royal College of Nursing (RCN) and the Scottish Partnership for Palliative Care (SPPC) have sought urgent clarification about conscience protections, with the SPPC stating that “the current level of uncertainty in relation to key issues leaves health professionals in an unacceptable position”.
Dr Neal explains that critics have long argued the bill goes beyond the legislative powers of Holyrood. The Scottish Government has acknowledged that provisions relating to medicines and medical devices, employment rights, and regulation of health professions (including opt-out rights) are not fully within devolved powers.
Provisions concerning medicines and devices were treated as “core issues”—central to how the law would operate. These were addressed before the final vote through a Section 30 order, temporarily granting the Scottish Parliament power from Westminster to legislate in this area.
However, employment rights and professional regulation were classified as issues “arising in consequence of” the legislation rather than core elements. Because of this distinction, they are not covered by the Section 30 order.
Instead, these matters could theoretically be addressed later through a Section 104 order, which would allow a UK minister to make changes after the bill becomes law. Dr Neal stresses there is no guarantee this will happen, nor clarity about what any protections would look like.
Earlier drafts of the bill included Section 18, a conscience clause stating that individuals had no duty to “participate directly” in assisted dying and should not suffer detriment for refusing involvement. An additional clause confirmed that professionals were not obliged to raise assisted dying with patients.
At the time, these provisions were criticised as inadequate. But now, because they fall outside Holyrood’s powers, they are being removed entirely before the final vote. If the bill passes, it would contain no protection for professionals who wish to opt out.
Meanwhile, survey evidence highlights why it matters:
- The British Medical Association found 45% of doctors would not prescribe life-ending drugs, while 36% would. Opposition was higher in some specialties: 50% of GPs, 56% in geriatric medicine, 60% in oncology, and 76% in palliative medicine.
- A 2022 survey by the Association for Palliative Medicine found 75% of Scottish respondents would not participate in any part of assisted dying, and 98% said it should not be part of mainstream healthcare.
- A recent survey found 29% of Scottish doctors would not even wish to discuss assisted dying with patients.
Dr Neal concludes that, with the promised conscience protections removed and uncertainty unresolved, professional bodies should move beyond neutrality and formally oppose the bill. Whatever one’s view on assisted dying itself, she argues, no law should proceed without clear and reliable protection for those who cannot in conscience take part.
