Chapter 10
Funeral sector overview

The regulatory framework

10.20 Very few legal obligations are imposed on “funeral directors” as such.433  However, the legislation and regulations impose a number of duties on persons “having charge of a body” or who are “undertaking the preparation of a human body for burial” or anyone who “disposes of a body”. Funeral directors therefore assume a number of legal obligations by virtue of their involvement in the funeral and having custody of the body. As persons who are offering services to the public for a fee, they must also comply with general consumer laws. Health and safety laws also apply.
10.21Section 46E of the Burial and Cremation Act 1964 (the Act) imposes a duty on a person “having charge of a body” to dispose of it “within a reasonable time”.434  Failing to do so might amount to the offence of neglecting to perform a duty imposed by law with reference to the burial or cremation of a dead person, which carries criminal sanctions.435  Prompt disposal is also required by the Health (Burial) Regulations 1946.436  In addition, as the person “who disposes of a body”, the funeral director is responsible for registering the death under the Births, Deaths, Marriages, and Relationships Registration Act.437  In practice the funeral director also assumes responsibility for obtaining the Medical Certificate of Death, and the cremation certificate if needed.
10.22The Act also contains legal duties which apply when custody of the body is transferred. Section 46F stipulates that a person having charge of a body must not transfer charge of it to another person, unless documentation is first obtained stating that the person receiving the body accepts responsibility for the final disposal and registration of death. There is an exception to this obligation when a person who is not a funeral director transfers the charge of the body to a funeral director.438

Health (Burial) Regulations 1946

10.23Hygiene standards for funeral homes are contained in the Health (Burial) Regulations 1946. Under the Regulations, funeral directors must be registered with local authorities.439  Registration of funeral directors is for record-keeping purposes only, and there are no grounds for refusing a registration application. In practice, local authorities check that standards of the mortuary440  meet the requirements of the Regulations, which are focused mainly on hygiene,441  and register funeral directors operating from mortuaries (ie funeral homes) that meet those requirements.442  However, different local authorities have adopted different policies, so standards for registration may vary slightly across the country. Local authority representatives note that their mortuary inspection function provides important independent oversight for the purpose of public health, but question the value of a registration process for funeral directors in the absence of minimum standards.
10.24However, funeral directors have generally informed us that industry practice significantly exceeds the regulatory standards, which are outdated and no longer provide a robust minimum code.443  This has also been confirmed by local authority representatives responsible for inspecting mortuaries. The Regulations have not been substantively updated since they were established, and do not reflect the extensive developments in scientific knowledge about the spread of infectious diseases and the health risk posed by dead bodies. The empowering provisions in section 120 of the Health Act 1956 allow the Regulations to impose conditions on the granting, renewal, or revoking of registration, but the Regulations have never been expanded in this way.

10.25We consider that the Regulations need to be updated. They are inaccessible, no longer rigorously based on current international best practice, and less than ideally suited to modern conditions. The Ministry of Health is planning to update the Regulations as part of the review of regulations under the Health Act 1956, once the Public Health Bill 2008 is enacted.

Therefore, we do not make any further comment other than to note that in survey feedback to us, funeral directors consider the following amendments would be particularly useful:444

10.26In chapter 12 we consider whether the existing provision for registration or licensing of funeral directors could be better utilised.

Generally applicable lawTop

10.27The law of contract and general consumer protection laws such as the Fair Trading Act 1986 and the Consumer Guarantees Act 1993 apply to funeral services. Included in these is a duty to exercise reasonable care and skill,445  and a duty not to make false or misleading representations or engage in false or misleading conduct.446  Goods and services must be fit for purpose.447  Providers of goods and services must not charge more than an agreed price,448  and must use reasonable care and skill when providing an estimate of costs.449  Case law has established that where special skill or expertise is required to deliver the service, the person supplying the service will be judged against the standard of a person possessing the special skill or expertise.450  This means that a person acting to the best of their ability will not meet the standard if their abilities are lacking.451
10.28Competition law is also relevant to the functioning of the funeral sector. Of particular pertinence to consumer interests are the provisions on restrictive trade practices under the Commerce Act 1986, which prohibit arrangements that substantively lessen competition in a market.452
10.29General health and safety legislation also applies, including the Health Act 1956, the Health and Safety in Employment Act 1992, and the Health (Infectious and Notifiable Diseases) Regulations 1966.453  The Ministry of Health has also prepared guidance for managing the health risks associated with handling dead bodies.454

10.30Some services relating to the deceased are subject to additional restrictions – for example, the Hazardous Substances and New Organisms Act 1996 applies to the handling of embalming fluid. Financial services law, securities law, and insurance law apply to associated financial products such as prepaid funerals and funeral insurance. These areas of law are outside the scope of this review.

433The Burial and Cremation Act defines “funeral director” as “a person whose business is or includes disposing of bodies”, while the Health (Burial) Regulations 1946 use the following definition: “a person who in the course of his business carries out burials and matters incidental thereto, and includes a person who holds himself out as prepared to carry out burials.”
434Burial and Cremation Act 1964, s 46E. The Act does not define the term “reasonable time”.
435Crimes Act 1961, s 150(2).
436Health (Burial) Regulations 1947, reg 35.
437Section 42. This must be done within three working days after the disposal of the body concerned (s 48).
438See s 46F. The Act was amended to include this section together with the definition of “funeral director” in 2009. Before these amendments, there was no mention of the “funeral director” in the Act.
439Health (Burial) Regulations 1947, reg 4.
440Defined in the Health (Burial) Regulations 1947 as “a room regularly used or intended to be regularly used for the preparation of dead bodies for burial or for the embalming of dead bodies or the examination or treatment of dead bodies prior to burial”.
441See Health (Burial) Regulations 1947, reg 21.
442Phone interviews with local authorities undertaken by the Law Commission (December 2012–February 2013).
443Funeral Directors Survey, above n 422.
444Funeral Directors Survey above n 422.
445Consumer Guarantees Act 1993, s 28.
446Fair Trading Act 1986, ss 9, 10, 11 and 13.
447Consumer Guarantees Act 1993, s 8.
448Section 11.
449Section 28.
450Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, approved in Chin Keow v Government of Malaysia [1967] 1 WLR 813 (PC); Bolitho v City and Hackney Health Authority [1998] AC 232, [1997] 4 All ER 771 (HL); Jung v Templeton [2010] 2 NZLR 255 (HC) at [24]–[25], affirming Arthur JS Hall & Co v Simons [2002] 1 AC 615 at 737.
451It is not clear how this would be applied to an industry in which there are no mandatory training requirements.
452Commerce Act 1986, s 27.
453The Health and Safety in Employment Act 1992 imposes obligations on those in charge of places of work, while the Health Act 1956 addresses more general matters of public health.
454Ministry of Health Environmental Health Protection Manual (June 2004). While not publicly available, relevant parts of the Manual are distributed to funeral directors by health protection officers.