Contents

Chapter 18
Recommendations for reform

Duties on providers of funeral services

18.50In Chapter 15 on burial and cremation, we proposed an updated set of obligations in respect of the disposal of bodies, such as an obligation to treat dead bodies with respect. Those obligations would apply to the public generally but will be particularly relevant to people providing funeral services.

18.51In this section, we describe a number of obligations that should fall specifically on the managers of funeral service businesses. It is appropriate that the managers of funeral businesses are responsible for these duties because they depend upon strong business processes that an individual employee may have limited ability to control. If these duties are breached, we think it should be the owners or managers or the business itself that is liable.

Record keeping

18.52Currently, all burials within any type of cemetery or burial ground must be registered with the local authority.372 There is also a duty on managers of crematoria to register all cremations.373 Burial registers must be open to public inspection, and cremation registers must be available for official inspection. However, there is no legislative obligation on funeral directors, embalmers or any other funeral service providers to keep records of the handling and disposal of human bodies.

18.53We propose that the statute should require that every manager of a funeral service business must keep records in respect of every human dead body in its custody. Those records should include at a minimum:

18.54In addition, the statute should require that every manager of a funeral service business must ensure that the identity of a body is maintained while it is in the custody of that business. This will generally involve the development of sound processes and protocols for maintaining the identity of bodies.

18.55Specific processes or procedures as to how to comply with these obligations (and that many funeral service providers will already be using) could be set out in regulations, including:

Supervision of unregistered employeesTop

18.56We have proposed above that every person carrying on the business of providing funeral services must be registered unless that person is supervised by a registered person. The statute should provide that owners and managers of funeral service businesses must ensure that unregistered employees are directly supervised and are not left in sole charge.

Custody and disposal of ashes Top

18.57Currently, the Cremation Regulations 1973 (the Regulations) provide some very specific instructions for cremator operators as to the retention and disposal of ashes. While in our view the level of prescription is unnecessary, some legislative provision is required. The common law is clear that there are no property rights in a human body. Whether or not that rule extends to the ashes from cremation of a body, we consider the statute should provide some clear guidance about custody and disposal of ashes after cremation.

18.58We have been advised by funeral directors that they often hold ashes for many years before family members claim them. Some are never claimed. The Regulations currently provide that the crematorium manager may deliver the ashes to the person who applied for cremation, retain them or decently inter them. If the ashes have been temporarily left with the crematorium and are not collected within a reasonable time, they may be interred after giving a fortnight’s notice by registered letter to the person who applied for cremation. If a different person applies for custody of the ashes, the crematorium must satisfy itself of the propriety of any delivery of ashes and act accordingly.374
18.59Unclaimed ashes can become a significant problem for some crematoria.375 Current practice appears to be that, from time to time, funeral directors advertise that they will dispose of the ashes if they are not claimed. The disposal typically consists of an interment at a cemetery or scattering in a suitable setting such as a public garden.

18.60In Part 4 we describe a proposed framework for making decisions after death about the body of the deceased person. In light of that framework, we consider that the new statute should contain specific provisions about custody and disposal of ashes that are consistent with that proposal. Specifically, it should state that:

18.61In Chapter 22 we also recommend that funeral service providers should be protected from civil or criminal liability for acting on the instructions of the person who they have reasonable grounds to believe has authority to make decisions in respect of the deceased body. That protection should extend to transferring the custody of ashes. If there is a dispute over who has authority to take custody of the ashes, the cremator operator should retain those ashes until the dispute is resolved.

18.62We also consider that the statute should provide clear guidance as to how long a cremator operator must retain unclaimed or disputed ashes before disposing of them. The Regulations currently provide a power to dispose of them after “a reasonable time”.376 A new statute should state a time period to provide clarity on this issue. After consultation, we consider that a cremator operator should be required to hold unclaimed or disputed ashes for 10 years. It is apparently not uncommon for family members to “remember” about the ashes and make inquiries about their whereabouts many years after the cremation. After 10 years have elapsed, notice should be sent to the last known address of the applicant for cremation that the ashes will be disposed of if they remain unclaimed six months later. If the ashes remain unclaimed after that time, the cremator operator may inter or scatter the ashes in an appropriate location.

Offence of breaching management obligationsTop

18.63We consider that a conviction and fine are appropriate enforcement mechanisms for a breach of these management obligations. Due to the nature of the offences, a prosecutor should have to prove that the defendant knowingly breached an obligation. This offence is not suitable for strict liability because there are a broad range of circumstances in which the obligation could be breached, so there is a more nuanced picture of culpability.

InspectionTop

18.64In Chapter 17 and earlier, we described the various statutory powers of inspection of cemeteries, crematoria and other facilities where funeral services are provided. We also noted that, despite these statutory powers, such inspections occur rarely or, in some cases, not at all. Consequently, we have considered whether the new statute should provide an obligation of inspection, and if so, on whom.

18.65It is clear that, despite recommending that the new registration system should be a function of central government, a centralised system of inspection is not likely to be effective, given the lack of local knowledge. Local authorities are better placed to conduct inspections of facilities for the provision of funeral services because they are local, are likely to receive anecdotal reports of problems and are likely to understand the local operating conditions.

18.66However, we do not think that local authorities should be under any specific obligations to regularly inspect these facilities to ensure compliance with legislative requirements. Such a function would be onerous. In order to be effective, it would require the development of expertise in the provision of funeral services that would be beyond the ability of many local authorities to maintain. This cannot be justified given the low level of problems encountered in this industry.

18.67Therefore, we propose that the statute provides a power in (rather than a duty on) local or national officials to inspect facilities in order to determine whether the providers of funeral services are complying with their legislative obligations. The power to inspect should include a power to seize records. We expect that the power would be utilised only occasionally, usually when officials receive information that gives them significant cause for concern. However, this power would enable a proactive inspection if the local authority considered that was required.

Recommendations

R91 The statute should provide that every owner or manager of a funeral service business is under a duty to ensure that:
  • records are kept in respect of every human dead body in its custody;
  • the identity of a body is maintained while it is in the custody of the business;
  • all unregistered employees are directly supervised; and
  • unclaimed or disputed ashes are held for at least 10 years.
R92 A funeral service business should have a power to inter or scatter ashes in an appropriate location if:
  • at least 10 years have elapsed since cremation;
  • the ashes remain unclaimed;
  • notice has been sent to the last known address of the applicant for cremation; and
  • the ashes remain unclaimed or in dispute six months after the date of the notice.
R93 The statute should provide that:
  • if a deceased person appointed a deceased’s representative, that person has the right to custody of the ashes after the body has been cremated and to decide how they will be dealt with; and
  • if a deceased’s representative has not been appointed, the family (as is defined in Part 4) has the right to custody of the ashes.
R94 The statute should provide that a breach of the duties in R91 is an offence for which the owner, manager or the business itself may be liable.

R95 The statute should provide that any authorised employee of a local authority or Police officer may at all reasonable times enter and inspect any land or building used for the provision of funeral services and seize records for the purpose of determining compliance with the statute or any regulations made under the statute.
372 Burial and Cremation Act, s 50.
373 Cremation Regulations, reg 9.
374 Cremation Regulations, reg 8.
375 Anna Leask “Funeral firm to bury unclaimed ashes” New Zealand Herald (7 March 2014) <www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11215340>.
376 Cremation Regulations, reg 8.