11.11Several features of the market combine to suggest that existing regulation may not be adequate. These include the practical difficulty of arranging a funeral without a funeral director, creating a captive market for services; the lack of competition for services in rural areas; the importance of high standards of service for the mourning needs of the bereaved; the time pressures involved for such a large financial and emotional commitment; and the inherent information asymmetries faced by the consumer.
11.12While it is perfectly legal to arrange a funeral without a funeral director, it is not straightforward in practice. Most people are ill-equipped to prepare and store the deceased before disposal, and cemeteries and crematoria prefer not to deal directly with the deceased’s family. Few coffin manufacturers sell directly to the public, especially at short notice. Using a funeral director is such a widespread social practice that independently arranging the funeral may also be socially proscribed.
11.13In many parts of New Zealand, there may only be one funeral director within easy driving distance. Rural funeral directors have confirmed to us that they commonly advertise their services across several districts, but most people end up using the closest available funeral director. Even in major centres, FDANZ has informed us that geographical proximity appears to be a major factor in choosing a funeral director, and it is rare for bereaved families to ask for testimonials or otherwise attempt to assess whether previous customers have been satisfied with the service provided.
Impulse buying, which should ordinarily be avoided, is here a built-in necessity. The convenient equivocations of commerce — "I'll look around a little, and let you know," "Maybe, I'll call you in a couple of weeks if I decide to take it" — simply do not apply in this situation.
11.17With increasing life expectancies and smaller family and community structures in many sectors of society, members of the public are likely to have less direct involvement with death. It follows that there will be less general knowledge about funeral practices. At the same time, the significance of funerals suggests that consumer protection is particularly important in this area. This gives rise to two issues. First, there appears to a mismatch between public expectations of industry standards and oversight, and the reality. Second, due to the nature of the purchase, the framework of the Consumer Guarantees Act 1993 applies somewhat clumsily to this form of service.
11.18FDANZ has informed us that they receive several calls each year from people wishing to lay a complaint against a funeral director, only to discover that the funeral director was not a member of FDANZ. Their impression is that most people assume the industry is subject to mandatory oversight, and assume that the FDANZ has disciplinary authority over all funeral directors. Members of FDANZ and New Zealand Independent Funeral Homes Ltd (NZIFH) have also told us that people are often surprised to learn that there is no requirement for funeral directors and embalmers to be qualified.
11.19Several members of FDANZ and NZIFH have told us that they have at times been required to take over the organisation of a funeral and preparation of a body at short notice after the deceased’s family initially contracted with an inexperienced service provider. Often the family was not aware that the provider lacked qualifications. In some instances, embalming had been attempted without sufficient knowledge of proper processes, requiring extensive remedial work to achieve a presentable appearance for an open casket.
11.21Funeral directors have informed us that bereaved families rely on the funeral director to provide information about the preparation of the body, legal requirements, and the conduct of the funeral more generally. They therefore depend on the funeral director providing accurate information. We have been informed that most complaints arise from poor communication, including when the funeral director fails to properly understand and respond to the family’s preferences.
The body leakage is an example of where insufficient information was provided to family and friends. To be practically and emotionally prepared the family and friends needed more than an explanation of what could be possible. In particular, there was not enough information about the amount of leakage possible and the traumatic effect it could have on people, particularly children, and how to deal with this. I find the family had genuine concerns here and suffered unnecessary trauma.
11.23This demonstrates the importance of providing reliable and impartial information. Initial preferences may change when the implications are more fully explained. Some families may prefer to embalm once informed of the possibility of odour and leakage; other families may prefer not to embalm once informed that a body can be kept presentable using ice-packs and refrigeration for the first few days after death.
11.24Under section 32 of the Consumer Guarantees Act, if a failure to provide reasonable service cannot be remedied and the contract is not cancelled, the consumer may “obtain from the supplier damages in compensation for any reduction in value of the product of a service below the charge paid or payable by the consumer for the service.” 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.
11.25As mentioned above, the lack of general public knowledge about funeral practices is a defining feature of the sector. Individuals are unlikely to seek this information until they need it urgently, by which point it is difficult to assess the options available. In particular, it can be difficult for consumers to obtain accurate information about prices. Most funeral directors do not include a full price list in promotional material. Few funeral directors proactively list a full schedule of costs and disbursements online; most advertise that their prices vary depending on a range of factors, and that a quote can be provided on request.
It goes back to the Funeral Directors too though. They are sitting there opposite you, and they are saying you can have this, this and this, and at this cost you can have this and if you really want you could have this. And once again you are in this frame of mind where you are thinking, ok, yeah looks wonderful, and you know you are overwhelmed with all your feelings and you are just saying yes, yes, yes. So I think a lot of it is on the Funeral Directors, I mean you know they did an awesome job with us, but I think they have got a responsibility and I don’t know who monitors them or keeps an eye on them or whatever happens, but they have got a responsibility to tell people that you don’t have to have a $3000 coffin, you can have a $1600, one which will do the same job and not make you so bad about saying, well actually I want the cheapest one there is.
11.29In our view, the longstanding nature of pricing concerns suggests that it is too simplistic to ask whether funerals are “too expensive”. The more pertinent issue is whether purchasers of funeral services have access to information necessary to make informed choices, or whether they are at an informational disadvantage. Consumer disadvantage is an enduring perception, but is it accurate of New Zealand today?
11.31Some funeral directors have told us that bereaved families are uncomfortable talking about expense; others have said that families will at times avoid the lower-cost options available because of the importance placed on a proper final farewell. There is a tension between not wanting to spend too much, and wanting to “do everything right”. FDANZ considers that funeral directors have a role in assisting families to make the best decisions for their circumstances, including avoiding unnecessary costs. At the same time, funeral directors with whom we have consulted also note that there can be unrealistic expectations about what can be provided for a given cost.
The circumstances of the death do not admit of any effective competition or any precedent examination of the charges of different undertakers, or any comparison and consideration of their supplies; there is no time to change them for others that are less expensive, and more in conformity to the taste and circumstance of the parties.Edwin Chadwick, Report on the Sanitary Conditions of the Labouring Population of Great Britain: A Supplementary Report on the Results of a Special Inquiry Into the Practice of Interment in Towns Made at the Request of Her Majesty’s Principal Secretary of State for the Home Department (W Clowes and Sons, 1843) at 51–53.
If there be any sort of service, which principles of civic polity, and motives of ordinary benevolence and charity, require to be placed under public regulation, for the protection of the private individual who is helpless, it is surely, this, at the time of extreme misery and helplessness of the means of decent interment.