Dr Mary Neal

Much can (and will) be said about whether this bill is safer for patients than the last such bill, which fell at the stage one vote in 2015. But it is also important to assess the bill’s safety for medical professionals, particularly those who would not wish to be involved in any assisted dying process.

The bill includes a conscience clause, section 18, which purports to provide that “[a]n individual is not under any duty…to participate in anything authorised by this Act to which that individual has a conscientious objection”.

The presence of a conscience clause is surprising: while assisted dying undoubtedly falls within the legislative competence of the Scottish Parliament, regulation of the medical professions does not, meaning that Holyrood cannot legislate for conscience rights without express authority from Westminster. Without such authority, any such clause is quite simply ineffective. The promoters are well aware of this: section 22 of the bill acknowledges that “[i]n so far as any provision of this Act, or any provision made under it, would relate to the reserved matter of…regulation of the health professions…the provision is (to the extent it would so relate) of no effect”.

So has authority to legislate for conscience been granted? This is not definitively answered anywhere. If not, the most generous interpretation of section 18 is that it is a statement of intention by the bill’s promoters – a ‘wing and a prayer’, included in the hope that the necessary authority will follow. Less generously, section 18 might be seen as ‘smoke and mirrors’ – an exercise in optics, providing false reassurance in order to persuade professionals and professional bodies not to oppose the bill. Either way, beneath the dry language of section 22 lurks the danger that the ‘protection’ offered on the face of the bill might ultimately be meaningless, a risk not acknowledged anywhere in the bill’s accompanying explanatory notes or policy memorandum. The paragraph of the explanatory notes dealing with conscience makes no mention of whether or not authority has been granted, and the paragraph on ‘reserved matters’ studiously avoids mentioning section 18 or conscience.

The problem does not end there. Even if the necessary authority is forthcoming and section 18 has effect, its terms should raise other concerns for professionals. Aping the language of the conscience clause in the Abortion Act 1967, section 18(2) provides that “[i]n any legal proceedings the burden of proof of conscientious objection is to rest on the person claiming to rely on it”. But whereas section 4 of the 1967 Act goes on to provide that “[i]In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection…shall be sufficient evidence for the purpose of discharging the burden of proof”, there is no such provision in section 18. This means that professionals who conscientiously object to assisted dying might find themselves challenged to prove in court on a balance of probabilities that they have an objection, or that their objection is truly “conscientious”. Doing so is likely to be practically impossible. Insofar as section 18(2) places an un-dischargeable burden on anyone seeking to exercise a conscientious objection, the bill may well violate the right to “freedom of thought, conscience and religion” in Article 9 of the European Convention on Human Rights, and thus fail to be compliant with the Human Rights Act 1998. If the legislation was indeed non-HRA-compliant, it could be struck down by the courts, since “[l]egislation passed by the Scottish Parliament is not law if it is incompatible with the rights defined in the Human Rights Act”.

The presiding officer and the member in charge of the bill have made statements that, in their view, the provisions of the bill are within the legislative competence of Holyrood; however, this may be because section 22 would nix any provision that overstepped (including the conscience clause). There must also be a question mark over the bill’s competence on the basis that section 18 may not be compliant with the HRA. In the light of all this, health professionals and their professional bodies would be wise to insist on immediate clarification regarding the status of section 18, and ask when professionals will have a definitive answer about whether that provision will be effective.

Dr Mary Neal is a reader in law at Strathclyde University