Contents

Chapter 15
Statutory duties in respect of the disposal of bodies

Disposing of a body within a reasonable time

15.7Currently, a person who has charge of a body must, within a reasonable time of taking charge of it, dispose of it; cause it to be disposed of; or transfer it to another person for disposal (or removal for anatomical examination under the Human Tissues Act 2008 or removal from New Zealand for disposal outside of New Zealand).270

15.8We consider that this requirement should be continued in the new statute. However, there are two aspects of the current requirement that lack sufficient certainty—what amounts to “a reasonable time” and who the person in charge of the body is.

15.9In relation to the “reasonable time” requirement, there is no guidance in the Act on what a reasonable time would be. It would depend upon the circumstances, as it should. Relevant considerations may be whether opportunities to dispose of the body were not taken and whether factors that caused delay were not actively managed. We consider that a test of “without undue delay, taking into account the mourning needs of the bereaved and any ceremonies to be performed” would be more certain and would give greater guidance than the current formulation of words.

15.10In relation to the person who is “in charge of the body”, this concept is unclear because it could refer to having physical custody of the body or it could refer to the person who has the rights of decision over the body. It will often be the case that those two people will be different, particularly when the services of a funeral director are employed.

15.11In making a recommendation for change on this issue, we have considered both that the policy driver behind this requirement is the public interest in bodies being appropriately disposed of without delay and our proposed new framework for burial decisions in Part 4. There, we propose that the decision-maker should have both the power and the duty to dispose of the body.

15.12However, we also consider that there is a public interest in this duty falling on the person who actually has custody of a body. For example, a body could remain in a mortuary for some time either because there is no family member immediately stepping forward to take responsibility for it or the funeral director has received instructions but is failing to act on them. In those cases, the funeral director, as the person who has custody of the body (even if that is a delegated right to custody), should have a duty to take actions to dispose of the body. We recommend in Chapter 22 that any person should have the power to make these decisions about the disposal of a body if the deceased person has not appointed a decision-maker and there is no family member stepping forward to make these decisions.

Recommendation

R80 The statute should provide that the person who has the duty to dispose of the body must do so without undue delay, taking into account the mourning needs of the bereaved and any ceremonies to be performed. Knowingly breaching this requirement without reasonable excuse should be an offence.

270Burial and Cremation Act, s 46E.