The following post is part of the Mason Institute student blog series which publishes the excellent work undertaken by Edinburgh postgraduate students on the Contemporary Issues in Medical Jurisprudence course, which forms part of our Masters in Medical Law and Ethics degree programme.
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The launch of ‘The Thistle’, Scotland’s first Safer Drug Consumption Room (SDCR), marks a significant shift in Scotland’s approach to drug use and users. As this SDCR is the first of its kind in the UK, it represents a progressive shift in drug policy by treating drug addiction as a public health issue rather than a criminal one. With Scotland experiencing the highest rate of drug-related deaths in Europe, reform is well overdue.
A Legal Grey Area
Although the Scottish Government supports harm reduction, the legal framework surrounding drug use is complex and fragmented. The Misuse of Drugs Act 1971, which criminalises possession and supply of illegal drugs, is reserved to the UK Government. Meanwhile, health policy and drug treatment fall under Scotland’s devolved powers.
To facilitate The Thistle’s opening, the Lord Advocate confirmed that users will not be prosecuted for possessing drugs within the facility. However, this is a matter of prosecutorial discretion (i.e., a policy decision) rather than a legal exemption. It offers some reassurance but leaves both police and users operating in a legal grey area.
In contrast, Vancouver’s Insite facility operates under a formal legal exemption from prosecution. This legal clarity protects users and staff alike, allowing the service to function without the risk of legal repercussions.
Access Without Fear – Policing
Although police officers have been advised not to arrest users inside The Thistle, no formal legal protection exists to enforce this. There is also no clear guidance on how policing should operate near the facility. As a result, users may worry about being stopped and searched on their way to or from the SDCR.
Such concerns are not unfounded. When the Insite facility first opened in Vancouver, a heavy police presence discouraged many users. Service uptake only improved after law enforcement adopted a harm reduction approach. Without similar police cooperation, Scotland risks repeating these barriers to access.
Potential service users may avoid the facility altogether due to the risk of arrest in the surrounding area. This undermines the core aim of harm reduction and could drive drug use back into unsafe environments.
Ethics and Human Rights
The World Health Organization (WHO) recognises harm reduction as a vital component of the right to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Criminalising drug use runs counter to this principle, as it may deter individuals from seeking healthcare or treatment as a result of fear of arrest or judgement due to stigma, thereby increasing overdose risk and pushing drug consumption into unsafe settings.
Although The Thistle creates a legally protected space for its users, they remain criminalised beyond the walls of the facility. This legal inconsistency leaves service users in a state of legal limbo, raising ethical questions. Can Scotland genuinely claim to prioritise public health while drug users remain at legal risk?
Stigma further complicates access. People who use drugs often face discrimination, even in healthcare settings. Fear of judgement or being mistreated deters many from seeking support. Aligning the legal framework with a health-based approach could help to reduce this stigma and encourage engagement with relevant services.
Future Reforms- What Changes Are Needed?
To fully implement a harm reduction approach, further reform is required. One option would be to follow Portugal’s example. In 2001, Portugal decriminalised possession of small quantities of drugs. Instead of facing criminal charges, individuals are referred to dissuasion panels focused on health and rehabilitation.
Most individuals referred to the panels have their cases suspended, as the primary objective is not punishment but to reduce drug use and educate individuals on the risks associated with it. Interventions such as referrals to treatment centres and counselling may be proposed on a non-mandatory basis, reinforcing the health-based nature of the approach and recognising that criminalisation may discourage individuals from seeking support.
This shift has shown promising results. Drug-related deaths and HIV transmission rates have fallen, and people are more likely to access treatment without fear of criminal consequences for small-scale possession.
For the first five years following the introduction of Portugal’s reforms in 2001, drug deaths saw a significant decrease. Portugal’s drug deaths for people aged 15-64 stood at 6 per million, substantially lower than the EU average of 23.7 per million in 2019. In comparison, Scotland’s deaths per million in the same age group are approximately 315 per million, over fifty times higher than Portugal’s rate.
While decriminalisation may not be politically feasible in the short term, particularly given that drug laws are reserved to the UK Government, other interim measures are worth exploring. One such approach is the creation of ‘safe zones’ around SDCRs, where users would not be at risk of arrest for possession when entering or leaving the facility.
This would significantly reduce barriers to accessing the facility and increase the likelihood of service engagement, as users can access the SDCR without fear of prosecution. Scotland could also push for formal legal exemptions for SDCRs, similar to those in Canada, to provide legal clarity and certainty.
Conclusion
The Thistle is a significant step towards addressing Scotland’s drug death crisis. However, without legal reform and stronger police cooperation, service users remain in a precarious position. Fear of arrest and continuing stigma may prevent many potential users from accessing the support they need.
For Scotland to truly offer “access without fear”, the legal framework must align with its public health goals. Whether through decriminalisation, safe zones, or formal legal exemptions, legal reform is essential for harm reduction in practice, not just in principle.
About the Author
This blog post was written by Eve Davis, LLM student in Medical Law & Ethics, in March 2025 for the Contemporary Issues in Medical Jurisprudence course.
Photo by Roberto Sorin on Unsplash
