Assisted dying and the law in Scotland: What the future holds

Despite the Assisted Dying for Terminally Ill Adults (Scotland) Bill being rejected, the debate is far from over. In the final part of our series, Ellie Philpotts explores the legal outlook.

A question now on Scottish academics, lawyers and members of the public’s minds looks a lot like: what now? The country’s assisted dying Bill failing as recently as March 2025 leaves Scotland with a lot of fresh unknowns. However, it does seem clear already that the discussions, solidified by both emotion and logic, are not settled.

Dr Chrystala Fakonti, criminal law lecturer at Glasgow Caledonian University, has long explored the legalities of assisted dying in Scotland. In 2024, when McArthur’s Bill was in relative infancy, she authored a paper on choice, autonomy and coercion, analysing the most significant elements from criminal and medical law perspectives. She argued that introducing the Bill would clarify criminal law in the area of assisted suicide, which can be “vague and unclear”.

Two years on Dr Fakonti tells the Journal that “Scotland now finds itself in a familiar position: despite sustained political and public engagement, there remains no clear statutory framework governing assisted dying, leaving a legally uncertain space where conduct could still fall within offences such as murder and culpable homicide.

“Recent developments, including the rejection of the Assisted Dying for Terminally Ill Adults (Scotland) Bill and the Terminally Ill Adults (End of Life) Bill failing in England and Wales, show the issue is far from settled. Rather, they expose a deeper tension: full legalisation has proven difficult to enact in practice, while continued prohibition is increasingly challenged.

“Jurisdictions, such as Canada, that have legalised some form of assistance in dying rely on a combination of autonomy and beneficence, requiring both a competent, voluntary request and a clinical judgment that death would relieve intolerable suffering,” she explains.

“The central challenge, however, is ensuring that ‘choice’ is genuinely autonomous. Concerns about coercion, subtle pressure and individuals feeling like a burden are real, and must be taken seriously.”

Dr Fakonti also comments on arguments commonly cited by those against assisted dying: “At the same time, slippery slope arguments are often overstated, as they rest on the assumption that legislators and practitioners can’t set and maintain principled limits, an assumption that underestimates the law’s ability to regulate complex and sensitive areas through robust safeguards.

“The appropriate response, therefore, lies in careful legislative safeguards, including strict capacity assessments, independent medical oversight and clear procedural requirements. The repeated failure of reform efforts suggests that framing assisted dying as a simple choice between full legalisation and prohibition is no longer workable.

“A more viable approach may lie in a compromise, such as recognising a narrowly defined criminal law defence for physicians acting under strict conditions of autonomy and beneficence. Such a defence would retain the general prohibition and affirm the value of life, while allowing the law to respond more flexibly to exceptional cases and, where its conditions are satisfied, fully extinguish criminal liability.”

Future complexities

An issue of this scale and nature can’t be boxed into black and white.

“Opponents have framed the debate as one where allowing assisted dying would inevitably lead to the defunding and de-prioritisation of palliative care. But this isn't an either/or situation,” says Dr Sarah Sivers, associate dean for research in the School of Law and Social Sciences at Robert Gordon University.

She recommends “access to both assisted dying and excellent palliative care, so individuals have a clear (and actual) choice between seeking an assisted death or benefitting from palliative care through to the end of their life”.

“However, that’s the ideal. The reality is that palliative care has been understaffed and underfunded, and is facing a crisis in terms of increasing demand as the population ages. Continuing to deny access to assisted dying leaves us in a position where the rights of those who have made an autonomous decision to end their life are denied because of the lack of a legal and accessible means to do so.

“At the same time the rights of those who want quality, accessible palliative care throughout their end-of-life journey are also often frustrated by a lack of accessible resources.

“Setting these two rights in competition with each other is unhelpful. Any denial of rights, in an era framed by a human rights-based discourse and by the importance placed on individual autonomy, needs to be addressed and doing so may require a degree of compromise. And that is to be found in legalising a robustly safeguarded framework for assisted dying for those who choose to end their suffering early, and continued investment and improvement of palliative care for those whose wish is to die a natural, easeful death.”

Dr Sivers continues: “It’s worth remembering here that maintaining the status quo does not prevent deaths. Individuals whose suffering is beyond bearing and who want to choose to bring their lives to an end will continue to do so. Refusal of treatment by a competent adult has long been recognised.

“Voluntary stopping of eating and drinking (VSED) will also bring about death. But both risk leaving the individual in a position where they can take steps that will end their life, but have no control over the timing of their death. What the status quo does prevent is a robustly regulated procedure that will bring about death in the way chosen by that competent adult and in a timeframe of their choosing.”

Previous problems

As introduced in our previous piece in assisted dying, Dr Mary Neal, reader in law at the University of Strathclyde, joined with Edinburgh and Glasgow lawyers to question the Health, Social Care and Sport Committee on the earlier stages of the Assisted Dying for Terminally Ill Adults (Scotland) Bill.

Dr Neal tells the Journal they did so after fearing the Bill “suffered from significant issues around legislative competence that weren’t being examined rigorously enough: the Scottish health secretary had flagged various parts of the Bill as being potentially legislatively incompetent and it was obvious to us that this was the case.

“We argued in our letter that the issues went much further than those flagged by the Government: it wasn’t simply the case that particular provisions within the Bill were beyond Holyrood’s powers, but rather the overriding purpose of the Bill could be viewed as one of ‘medical regulation’ (a reserved matter).

“We received no reply to our letter, and when the committee published its Stage 1 Report, they hadn’t engaged meaningfully with issues of legislative competence as we had urged them to do. It may have been relying on the fact that the presiding officer had certified the Bill as legislatively competent (even though it wasn’t, which later became all too obvious). However, it’s doubtful whether the committee should still have been relying on this certification in light of concerns that the health secretary had raised by that time.”

According to Dr Neal, primary academic criticisms of McArthur’s Bill involved academics’ concerns about coercion, particularly domestic abuse; issues of legislative competence (the respects in which it exceeds the Scottish Parliament’s power); and conscientious objection.

In terms of academic debate about assisted dying in Scotland more generally, academic opinion is divided. For example, Dr Neal has serious concerns such as the harms that would result from any relaxation of the law on homicide and how that would place vulnerable people (especially women and disabled individuals) at significant risk of coercion; the undermining of suicide prevention messaging and trust in health professionals; the threat to employment rights; and the risk of damaging the vital palliative care sector.

On the other hand, Dr Neal reflects, some academics argue the existing criminal law governing assisted suicide in Scotland isn’t sufficiently clear, needing a statute for clarification. However, she expands, those who argue along these lines are always arguing for a permissive statute, although a statute clearly outlawing all forms of assisted suicide would be just as clear: “So when academics claim that ‘existing law is not clear enough’, I think this is a bit of a red herring: what they want is not a clearer law, but a much more liberal law.”

Professional reputations

Dr Neal is particularly concerned about individuals’ and organisations’ ability to opt out of involvement in assisted dying for conscientious or other reasons, and guaranteeing ‘no detriment’ for them.

“As was already well known, but as has been made even clearer during the process around the McArthur Bill, Holyrood doesn’t have the power to legislate on these issues. Moreover, the UK Government was reluctant to cede such power even temporarily to Holyrood, preferring they be addressed by way of a section 104 order. It’s extremely concerning that a Bill of this kind could get so far along the road to becoming law with a matter of such central importance in such grave doubt,” she explains.

“All sides seem to agree that this issue won’t go away. The direction I would like to see the debate take now would be a common focus on improving palliative care in Scotland, which everyone agrees isn’t where it needs to be. We have tremendous expertise within Scotland and, where it’s available, palliative care transforms lives for the better, but it’s not adequately funded or available to all who need it”, continues Dr Neal, who wants this to sit at the centre of the debate, alongside tackling poverty, domestic abuse, disability discrimination, negative attitudes to illness and disability, and other “social ills driving demand for assisted suicide”.

“What demand there is exists in large part because of these negative social phenomena and it stands to reason that we should work to minimise these and see how that affects demand for legalised assisted suicide.

“What I expect, however, is that activists will simply press ahead with their efforts to get a Bill through Holyrood, dismissing concerns about coercion, capacity, impact on the palliative care sector, trust in health professions, employment rights and legislative competence, etc, as they did when trying to get the McArthur Bill through.”

So what will, in fact, pan out remains to be seen. But whether your law firm comes across assisted dying directly or not, it is bound to be an evocative topic that will play a prominent role in your work for some time to come.