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Consultation Paper on Death Certification, Burial and Cremation



Planning for New Crematoria

98. Current legislation requires that in order to achieve planning permission any new crematorium building must be placed no closer than 200 yards from a dwelling house (this distance does not include car parks or gardens of remembrance) or 50 yards from a public road (a road is defined as a road which the roads authority have a duty to maintain as defined by the Roads (Scotland) Act 1984).

99. The Review Group considered that such limits, converted into metric measures should be kept as they ensured a level of privacy and quiet for visiting mourners, helped prevent adverse effects on adjacent houses and protected the public.

Question 46
Should the requirements specifying minimum distances (converted into metric) between new crematorium buildings and houses or roads be maintained when granting planning permission?

Exhumation of Cremated Remains

100. At present there are no laws relating to the exhumation of cremated remains in Scotland and the Review Group has recommended that a system similar to the procedures applied in Northern Ireland 3, which does not require the authority of the courts or Northern Ireland Office, should be introduced. It is envisaged that this procedure could involve the application for such an exhumation being made to a designated individual at each burial authority under the arrangements proposed for exhumation for re-use of lairs.

Question 47
Should the Scottish Government introduce legislation covering the exhumation of cremated remains?

Disposal of Cremated Remains

101. At present there is no legislation relating to the collection or disposal of cremated remains. The Cross Party Group on Funerals and Bereavement suggested that when new legislation is made it should include a provision which would make it a requirement that bereaved families should collect ashes from a funeral director's premises within a set timescale unless they have provided a written request to do otherwise. The Cross Party Group suggested that a maximum time limit of 5 years may be an appropriate timescale. If ashes are not collected within 5 years, then the ashes may be returned to the cremation authority for disposal. Any ashes currently being retained in funeral director's premises for a period of over 5 years, and where there has been no contact from the client who contracted for the funeral for over 5 years and where that client cannot be located or fails to respond to correspondence, shall be dispersed in a suitable location at the discretion of the funeral director.

Question 48
Is a time limit of 5 years a reasonable length of time to enable the next of kin to collect the ashes of the deceased?

Question 49
Is it reasonable and practical for the ashes to be returned to the cremation authority for disposal if they are not collected after 5 years?

Question 50
Is it reasonable to enable the disposal of existing unclaimed ashes that have currently been stored on the premises of funeral directors for over 5 years and where no instructions have been received, to be dispersed at a suitable location at the discretion of the funeral director?

Promession and Other Methods of Disposal

102. Promession is an ecological alternative to burial and cremation which was expected to be first available in Sweden and to be extended to other countries in time. The body and coffin (preferably a simple wooden coffin) are cooled to a temperature of -18oC then placed in a tank and covered in liquid nitrogen further reducing the temperature. Once frozen, the body which by now is very brittle is then moved into a mechanical vibrating machine with a 5cm vibrating movement that breaks up the remains in about 60 seconds. Any water is then removed in a vacuum chamber leaving around 30% of the original mass in 2-4mm pieces. Any metal including toxic mercury based tooth fillings and surgical parts are removed in a metal separator. This process is a closed procedure with no human intervention required except from starting the process and removing the remains at the end.

103. Finally, the dry odourless organic remains are placed into a 1m2 biodegradable coffin made out of corn starch. To allow the remains to turn into compost they are buried in a shallow grave of no more than 50cm in top soil and left for a period of 6-12 months by which time the remains should have been absorbed by the earth and converted into soil. A plant or tree can be planted on top of the earth to absorb the nutrients during the composting. The remains could also be cremated in the container which is believed to be more environmentally friendly as all metal has been removed from the body and therefore preventing the emission of toxic mercury during cremation.

Water Resolution

104. Water resolution is said to be an environmentally friendly method of disposal of the body. It is an accelerated version of the natural process of hydrolysis driven decomposition after burial. The body is placed in a horizontal pressure vessel which uses alkaline hydrolysis technology. Tissue assumes a liquid form which can be returned to the environment and the powdered bone is given back to the relatives as in cremation.

105. While these methods of disposal of the body are still in their infancy and it is unclear whether or not they will become widely adopted in Scotland in the future, the Review Group recommended that they should be regulated in the same way that traditional methods of disposal are. It is the intention of the Scottish Government that any future legislation should be 'future proofed' by the enactment of legislation enabling regulations to be made for these and any possible alternative methods which may emerge in the future.

Cremation law

Home Cremation

106. At present home cremation is not legal, however, to prevent any dispute or legal challenge the Review Group has recommended that any future legislation should specifically state that open air / home cremation is not legal. The Scottish Government is in agreement with this recommendation and will incorporate such a clause in any future relevant legislation.

Deaths Abroad

107. At present the Scottish Government handles approximately 130 requests a year for cremation authorisations resulting from repatriation of Scots who have died abroad. There is no need for authorisation if relatives opt for a burial of repatriated Scots who have died abroad. If the approximate 40/60 split between burial and cremation in Scotland applies to deaths abroad then there will be around 250 deaths per year that require repatriation for a funeral service in Scotland and disposal of the body. The Scottish Government estimate that of these in around 10% of cases the cause of death will not have been established and in a handful of cases the circumstances may be suspicious or unexplained. While the numbers involved are comparatively small it can be a distressing time for the nearest relative. In future it is intended to simplify the process so that the same authorisation process applies whatever the method chosen for disposal of the body.

108. The Burial and Cremation Review Group considered that in these cases the needs of the nearest relative would be best served if legislation were enacted to give the COPFS the same powers over all these deaths as it had for suspicious deaths of those who died in Scotland regardless of the method chosen for disposal of the body. At present in Scotland no public body has the general power to request a post mortem where a death has occurred abroad. The position in Scotland differs from what currently happens in England and Wales and Northern Ireland where if a body is repatriated from abroad and the cause of death has not been established the case can be referred to the Coroner who has powers to hold an inquiry or to instruct a post mortem. In Scotland it is open to the nearest relative to request a post mortem to be carried out at their own expense but before effect can be given to such a request it is necessary to clarify who has the authority to instruct the post mortem. If the cause of death is suspicious and foul play cannot be ruled out, or the cause of death cannot be established, it is not possible for the family to proceed with a cremation. In such circumstances it is only possible to proceed with a burial without establishing the cause of death or the alleviation of suspicion. This may be seen as unsatisfactory for the family and can be the cause of additional distress.

109. An independent review of the fatal accident inquiry legislation was recently undertaken by the Rt. Hon Lord Cullen. A consultation paper published at the end of November 2008 by Lord Cullen in order to inform his review specifically asked whether the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 should be extended to provide for Fatal Accident Inquiries into the deaths of all Scots abroad where bodies are repatriated. The Chair of the Burial and Cremation Review Group wrote to Lord Cullen in response to the consultation setting out the Review Group's view that the Crown Office Procurator Fiscal Service should take on these arrangements. The consultation finished on the 20 February 2009 and can be viewed at http://www.scotland.gov.uk/About/fatal-accident-review/20094258/0. Lord Cullen's report detailing his findings and recommendations was published on the 3 November 2009 and a copy of the report can be viewed at http://www.scotland.gov.uk/Publications/2009/11/02113726/0. Lord Cullen makes a recommendation at 10.10 in that report that "There should be an extension to Fatal Accident Legislation to make provision for the Lord Advocate to have the power to apply for a Fatal Accident Inquiry into the deaths of persons normally resident in Scotland where the body is repatriated to Scotland, excluding cases for which provision is to be made in the Coroners and Justice Bill. The power of the procurator fiscal to investigate such deaths should be clarified, if necessary by legislation." The Scottish Government will wish to consider Lord Cullen's report and its recommendations in its entirety, and it is likely that we will consult on the report's recommendations at a future date, including whether or not Fatal Accident provisions should be extended to deaths abroad.

110. We would nonetheless welcome views on who should be responsible for making the practical arrangements for instructing a post mortem. It should be noted that there will still be a few instances where even following a post mortem it will still not be possible to clearly establish the cause of death or rule out suspicious circumstances. At present no Scottish Government body has jurisdiction to intervene in such cases but it is open to the family of the deceased to raise their suspicions with the foreign authorities and with the Foreign and Commonwealth Office to request further investigation.

Question 51
When death of a person who is normally resident in Scotland occurs abroad should a Government body be able to arrange a post mortem to establish the cause of death if this is unknown?

Question 52
Are there any other measures that could be taken to simplify this process?

111. The Procedures that apply in the separate parts of the United Kingdom regulating the transfer of human remains within the United Kingdom are not uniform. The Review Group noted that this can cause difficulties to those involved in the transfer at the very time when the bereaved are at their most vulnerable. As increasing population mobility means that the need for such transfers is also likely to increase, it is recommended that the procedure for transfer of human remains between England, Wales, Northern Ireland and Scotland (and vice versa) should be made uniform whenever possible.

Burial at Sea

112. At present the Maritime and Coast Guard Agency ( MCA) is responsible for regulating burial at sea under the Food and Environment Protection Act 1985 (as amended). The Review Group commended these arrangements and there are therefore no plans to amend these or update them at this time.

Arrangements in the Instance of an Epidemic or Pandemic

113. The Review Group was asked to consider whether existing procedures for the identification and certification and disposal of the dead would be sufficient to deal effectively with an episode of mass fatalities such as a flu pandemic.

114. Regulation 15 of the 1935 Cremation (Scotland) Regulations enables Scottish Ministers to suspend various regulations pertaining to cremation in the case of an epidemic or for any other reason. The Review Group considered that this power should be extended so that any regulations relating to registration of the death and certification for the disposal of the body, regardless of the method, could be suspended where necessary. It should not affect the obligation to register deaths under the Registration of Births, Deaths and Marriages (Scotland) Act 1965 as the Registrar General has power under Section 26 of that Act to extend the period for registration. The proposed power, which should be able to be utilised swiftly, should enable Scottish Ministers to suspend or modify the relevant regulations in any particular locality, localities or throughout the whole of Scotland. The exercise of the power in these extreme circumstances is intended to facilitate the conservation of limited resources and help ensure that the care of the living is the focus of resources during any epidemic.

115. It is also worth noting that for certain infectious diseases, disposal by burial or cremation may be prescribed for public health reasons. This is to protect the health of the general public as well as medical / funeral professionals.

116. Information on the Scottish Government's framework for responding to an influenza pandemic, which at paragraph 10.4 includes guidance on death certification, can be found at the following link: http://www.scotland.gov.uk/Publications/2007/11/21141855/0.