Contents

Chapter 17
The case for reform

Lack of regulation over funeral service providers

17.6As we noted in Issues Paper 34, the most important underlying principle informing the law of burial, cremation and funeral service provision is that of human dignity. Derived from that principle is a requirement that the body of the deceased person is respected.323 This principle is reflected in both the idea of a right to a decent burial and in specific duties under tikanga Māori that the living have to the tūpāpaku, the recently deceased.324 It is also explicitly recognised in legislation under section 150 of the Crimes Act:

Everyone is liable to imprisonment for a term not exceeding 2 years who […] (b) improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not.

17.7The principle of respect for human remains is confirmed in various sections of the Burial and Cremation Act 1964 (the Act). The two most important provisions are section 51, in which it is an offence to remove any body or remains of a body from a burial place without a licence from the Minister of Health, and section 46E, in which bodies must be disposed of within a reasonable time.

17.8It was apparent to us during our consultation that respect for the body of the deceased person is a key principle of the practice of every funeral director we have met. However, it was also apparent that occasional problems arise due to lack of knowledge or lack of experience. Also, it is likely that, when problems arise, they go largely undetected because most of these services occur out of sight of the public or the consumer.

17.9Examples of inappropriate treatment of a deceased body could include:

17.10At the extreme end of the scale, a crematorium could be used to dispose of bodies in order to cover up criminal wrongdoing. This may be possible through unrecorded firings of the cremator or, in some older cremator units, two bodies being cremated together but recording only one.

17.11The legislation currently provides a number of protections against inappropriate treatment of bodies by funeral service providers, although we conclude that they are insufficient and reform is needed.

Prerequisites to being allowed to provide funeral services

17.12As we mentioned earlier, funeral directors must be registered annually, but that is a straightforward process, and an applicant does not need to provide any evidence of training, experience or competence.327 Registration does not apply to some people in the industry, such as cremator operators, embalmers, cemetery managers or sextons, if they are not also “carrying on the business of funeral directors”.

Guidance for providers of funeral servicesTop

17.13Disrespectful behaviour may occur without intent but through negligence or lack of training or experience. Guidance through regulations can help in this regard on the basis that compliance with the regulations may go some way to avoiding unintentional disrespectful behaviour. For example, the Health (Burial) Regulations 1946 require that:328
17.14There is some similar guidance in the Cremation Regulations 1973 in respect of the operation of crematoria. For example, those regulations require that:334

17.15While the guidance provided in these regulations offers some protection against inappropriate and disrespectful behaviour, it is very limited and does not address deliberately inappropriate behaviour.

Inspection and other scrutinyTop

17.16While local authorities have no specific powers of inspection in respect of funeral director premises, they do have the power to inspect any premises for the purpose of ascertaining whether there are any nuisances or conditions likely to be offensive or injurious to health.339 That power could, in theory, be used to find evidence of inappropriate or disrespectful behaviour in respect of bodies on the basis of it being offensive. However, in reality, this power will only be used if the local authority receives specific information of offensive behaviour, and many forms of that can be hidden from such inspections. We are told that, in practice, these inspections rarely occur, if ever.
17.17There are also broad powers in the Cremation Regulations for health officials to inspect crematoria and cremation records.340 This power suffers similar limitations to the first inspection power in that it is rarely used, probably because officials will be inclined to wait until they receive complaints, and disrespectful behaviour may occur without the knowledge of other people.
17.18The one funeral facility that is routinely inspected is mortuaries. They are inspected for the purpose of granting a certificate of fitness.341 Inspection is conducted annually because it is tied to the annual registration of the funeral service business. In addition, if asked to do so, embalmers are required to give details to a medical officer of health of the embalming process carried out. They must also carry out any further treatment of the body that the officer directs.342 This power could be used to rectify any embalming process that was negligently or inadequately carried out.

Sanctions and offencesTop

17.19There are a number of offences that can be used to prosecute people in respect of inappropriate or disrespectful behaviour. At the top of the list is the offence under the Crimes Act of improperly or indecently interfering with or offering an indignity to any dead human body or human remains, whether buried or not.343 In Chapter 15, we discussed that obligation together with other general duties in respect of the disposal of dead bodies. We proposed there that the new statute should include a new offence of failing to treat a dead human body with respect. That new offence would capture lower-level disrespectful behaviour that would not be prosecuted under the Crimes Act provision because it carries a potential term of imprisonment of two years.

17.20The Act provides a range of offences including:

17.21Disrespectful or inappropriate treatment of bodies may give the Minister reason to close a crematorium. This can be done if the crematorium’s management or an employee is convicted of an offence under the Act in respect of the operation of the crematorium or the local authority is satisfied that closure is expedient in the interests of health.347

17.22These offences and sanctions offer very limited protection because, in practice, they are rarely used and only for the most serious of behaviour.

Submissions Top

17.23In Issues Paper 34, we asked a number of questions designed to elicit whether submitters thought that the current regulatory scheme was sufficient. In particular, we asked whether funeral directors should be required to:348

17.24The overwhelming majority of submissions from individuals, community organisations, central government and local authorities thought that funeral directors should be required to demonstrate an understanding of the law relating to handling human remains. In fact, the public were often surprised to learn that funeral service providers did not currently need to be qualified and were not regulated. It was acknowledged that, although problems in the funeral sector were relatively rare and the standards normally high, the public expect that there will be appropriate safeguards and regulatory protections. Some submitters thought this could be provided by licensing funeral directors. A significant number of submitters suggested that providers should be required to have appropriate qualifications. A number thought it important that funeral service providers should be assessed for their cultural understanding, which could be achieved through the appropriate qualifications.

17.25Most submissions from funeral directors thought they could demonstrate the required skills through compulsory qualifications and affiliation to an industry body rather than by licensing. One funeral service provider said it was too late to ask if the person was qualified once a funeral service provider arrived at your door. Therefore, they said the best protection would be compulsory qualification and compulsory industry body membership. This was supported by many in the funeral sector.

17.26The Funeral Directors Association of New Zealand (FDANZ) and New Zealand Embalmers Association (NZEA) favoured self-regulation over a licensing option. New Zealand Independent Funeral Homes (NZIFH) proposed an industry structure loosely based on the Real Estate (Licensing) Regulations 2009. Under that structure, all employees would be required to be qualified to a certain level or under the oversight of a more qualified person.

17.27Most submitters (including funeral service providers) supported a mandatory code of conduct and complaints mechanism, although those outside the funeral sector thought this should be independent of the funeral sector. Several submitters from community organisations and local government thought there should be an industry ombudsman. Submissions from funeral service providers were divided fairly equally between whether the complaints body should be an existing industry body or an outside body. Some were quite clear that FDANZ was not the right body, whereas others believed it was.

17.28Consumer New Zealand commented in its submission:

In addition to any licensing regime, our view is that consumers need access to an independent complaints process. While we agree that funeral services are unlike other services in that there may be little scope to “put things right”, an avenue for redress is essential for effective consumer protection. In our experience, one of the reasons consumers are often reluctant to complain is the lack of effective avenues to pursue a complaint. They are often uncomfortable about approaching the provider directly. They may also be reluctant to complain to an industry association, which may not be seen as independent or impartial. Further, not all providers belong to an industry body. Of the options presented in the issues paper, our preference would be for complaints to be dealt with by an independent complaints body. The Electricity and Gas Complaints Authority model may be a useful model to consider in respect of the funeral industry.

17.29The New Zealand Law Society submitted:

The main issue from a health law perspective is ensuring public health and safety and ensuring the provision of services that respect the dignity of the deceased and their families. This can be addressed through a licensing regime as noted above… The code of conduct could be voluntary if the licensing regime were in place. A complaints mechanism should be an integral part of the licensing regime.

17.30In Issues Paper 34, we also sought feedback on whether there should be stronger regulatory controls over the operation of crematoria, including the handling of human ashes and whether those who operate crematoria should be licensed.349
17.31Submissions were strongly in favour of licensing for cremator operators.350 This support was based on the need for public assurance and accountability, respect for the deceased and ensuring that criminal conduct does not occur. The Law Society responded:

A licensing regime for those who operate crematoria may be preferable to an inspection and audit regime. It could involve education and training, and be aligned with the licensing of funeral services providers. An inspection regime is less likely to be able to monitor all eventualities, whereas licensing may give the public confidence that operators/providers are to some extent self-monitoring, having been background checked, trained and regulated to operate crematoria and provide funeral services with a level of professionalism linked to the licensing regime.… A licensing regime should include provision for review, suspension and cancellation of licences.

17.32A significant majority of the funeral sector, including FDANZ, were in support of licensing for cremator operators (in contrast to licensing for funeral directors) in order to ensure standards were kept high with the public being protected and the deceased being respected. However, there was a concern about local authorities fulfilling any regulatory role since local authorities were perceived to have a conflict of interest, given that some of them operate their own crematoria.

17.33Local authorities, although largely in support of licensing cremator operators, did not wish to be the ones to operate the regulatory system, due to resource concerns. Local Government New Zealand argued this added a completely new duty and process to local authorities’ responsibilities and submitted that licensing would need further consideration, clarification and discussion with all parties.

17.34As regards stricter regulatory controls over crematoria, 103 submitters out of the 125 who answered this question were in favour of stricter controls. The Ministry of Health was in support due to:

[T]he proliferation of non-Council operated crematoria. Officials are receiving small, but increasing numbers of complaints about crematoria including anecdotal reports and allegations of visible smoke emitted, substandard coffins, re-use of coffins without clients’ permission, co-mingling of ash, ash not being appropriately identified, deceased effects being stolen, animals being cremated.

17.35It considered that more explicit controls would help reassure the public of the standards that are expected and enable complaints to be investigated and enforcement action taken if necessary.

17.36However, the New Zealand Law Society cautioned against excessive regulation and suggested that it must be proportionate to the risks. It did, however, acknowledge that some regulation may be needed to foster public confidence, recognising that it is difficult for people to raise or identify problems involving crematoria.

ConclusionTop

17.37We consider that the funeral services sector has particular features that result in a public expectation that high standards will always be maintained. People entrust funeral service providers with the care of a very precious thing—the body of their deceased family member or friend. In most cases, there is a lot of spiritual and emotional sentiment attached to the processes of disposing of the body.

17.38If things do go wrong, the harm suffered cannot easily be put right. A funeral service cannot be re-run, and distressing experiences cannot be reversed. Neither is compensation a sufficient response. As we noted in Issues Paper 34:351

Existing consumer protection law rests on the premise that poor service is occasionally inevitable but can be remedied. This is not an accurate assumption for the funeral sector. Poor service is likely to cause significant emotional distress, and there is very little scope for it to be corrected. While reduced fees may go some way to ameliorating distress occasioned by poor service, it is clearly not likely to be an adequate substitute for receiving good service at the outset.

17.39Work undertaken to prepare the body for the funeral usually occurs behind closed doors, which makes it difficult to detect disrespectful or inappropriate behaviour. For this reason, it is important that the public feel they can trust that funeral service providers will treat deceased bodies with due care and respect.

17.40It was clear from our consultation and the submissions received during the course of this project that the general public inaccurately believe that funeral service providers must currently be qualified or regulated. That is not the case, and we have concluded that the current legislative protections provide very limited assurance of high standards of practice in this industry.

17.41While we have not found low standards of practice to be prevalent in this industry, we have found that the public expects the legislation to provide assurances of high standards, and that is not currently the case. The current inaccurate belief that the system already provides that assurance adds to the vulnerability of consumers because it may make them less cautious about who they engage or less likely to check and compare the experience and qualifications of different providers.

323Law Commission, above n 8, at 1.18–1.22.
324Law Commission, above n 8, at [1.18].
325See R v Young, above n 267.
326Andrea Bolieiro “The ‘Dead Body’ Offence in Canada: How Courts Interpret and Apply Section 182 of the Criminal Code” (2010) 35 Canadian Law Library Review 125 at 127.
327Health (Burial) Regulations, reg 4.
328Any person who breaches these regulations is liable to a fine of $100: reg 40.
329Regulation 25.
330Regulations 28 and 34.
331Regulation 32.
332Regulation 35.
333Health (Burial) Regulations, reg 38.
334A breach of these regulations is an offence under section 56(1) of the Burial and Cremation Act and makes the person liable to a fine not exceeding 500 pounds or a term of imprisonment not exceeding 12 months.
335Cremation Regulations, reg 3(4).
336Regulations 5(1) and 4(2)
337Regulation 8.
338Regulation 9.
339Health Act 1956, s 23(b).
340Cremation Regulations, regs 3(6) and 9(3).
341Health (Burial) Regulations, reg 15.
342Regulation 29.
343Crimes Act, s 150.
344Burial and Cremation Act, s 55.
345Section 56(3).
346Section 56(1).
347Cremation Regulations, reg 3(3).
348Law Commission, above n 8, at 173.
349Law Commission, above n 8, at 145.
350139 submitters out of 143 who answered the question responded positively.
351Law Commission, above n 8, at 161.