Funeral Director - Code of Practice: consultation analysis

Analysis of the consultation carried out between June and September 2019 on the proposed Funeral Director: Code of Practice.

2. Facilities: Questions 1-5

Question 1

If you own or operate a funeral director business, will the requirement to have a designated and fit for purpose care facility or mortuary as outlined in the Code have an impact on your business?

Sixty-one out of 86 respondents answered Question 1 (see Table 3). The majority of respondents (49) to Question 1 selected 'no', indicating that the requirement to have a designated and fit for purpose care facility or mortuary would not have an impact on their business.

Table 3: Responses to Question 1.
Answer Number
Yes 5
No 49
Don't know 7
Total 61

The majority of open-ended comments expressed support for the requirement for funeral directors to have a designated and fit for purpose care facility or mortuary. Some commented that this was critical for any funeral director business. Many respondents indicated that they, or their members (if trade bodies), were already compliant with this requirement. A minority of these also linked the requirement to health and safety improvements for their business. They indicated that they saw the health and safety benefits of investing in their facilities and equipment beyond practical or purely functional considerations.

Of the five respondents who selected 'yes', indicating that the requirement would impact their business, two clarified that the impact would be positive, citing for example the creation of "confidence in the general public". Another simply noted they already had their own private mortuary facilities (similar to many respondents who answered 'no').

The two remaining respondents who selected 'yes' identified the need for nuance in these decisions, with one noting that the services expected are vastly different in different communities. For example:

"We are Island Based and currently use the NHS mortuary facilities at our local hospital for the storage of deceased. Whilst the NHS mortuary is currently being upgraded to improve facilities I think it is unreasonable to expect small family funeral directors to invest in mortuary facilities for their premises when NHS facilities are more than adequate to provide this facility. I think individual consideration should be given in smaller communities". (Funeral director individual)

Some respondents felt that the Code should be made clearer in respect to the requirement to have a designated and fit for purpose care facility or mortuary. Comments ranged from the need to clarify small ambiguities to calls for a re-thinking and re-writing of the entire requirement. Some respondents suggested that the wording may allow for different interpretations of the requirement and, therefore, could render it ineffective if left unchanged in its proposed form. For example:

"…If it is a requirement that every funeral director have bariatric sized refrigeration, many will not have the space." (Funeral director organisation)

"We agree that all care of the deceased should take place at locations that are fit for purpose but would question the usefulness of the additional requirement that all care of the deceased must take place at locations "specifically chosen for that purpose". In the absence of guidance on how such a choice should be made we cannot see that this restricts a funeral director's choice of location at all – a funeral director could specifically choose a completely inappropriate location and remain compliant with this provision of the Code." (Funeral industry trade body)

Seven respondents indicated that this requirement may disproportionately affect small and medium sized enterprises (SMEs) and rural funeral directors, who may not be able to meet the cost and space requirements to have their own care facilities or mortuaries. One respondent commented that different parts of the country serve different local communities and what may work for metropolitan based funeral directors may not necessarily translate easily for funeral directors operating in rural areas. For example:

"Working with many funeral directors I realise the services expected are vastly different in different communities. Funeral Directors who are based in areas with low population density and where often the family and friends are more hands on may not require an elaborate premises." (Individual)

A final concern was about how families that wish to care for deceased relatives themselves (e.g. in the family home) may be affected by this requirement. For example:

"I'm intrigued to know if any provision has been made for families who may wish to take care of the person who has died at home, and not engage a funeral director or use mortuary facilities. We often find ourselves helping families to keep the person who has died at home at their request and I'd like to see something put in place to ensure this can still continue." (Funeral director organisation)

Question 2

The Code sets out a ratio of the number of refrigeration spaces to number of deceased people per year at 1 to 50. Do you agree with the ratio of 1 to 50?

Seventy-three of the 86 total consultation respondents answered Question 2 (see Table 4). The majority (42) expressed agreement ('agreed' or 'strongly agreed') with the proposed ratio and 22 expressed disagreement ('disagreed' or 'strongly disagreed'). However, the open-ended comments demonstrated that this issue is complex and potentially needs greater clarity and flexibility.

Table 4: Responses to Question 2
Answer Number
Strongly agree 10
Agree 32
Disagree 15
Strongly disagree 7
Don't know 9
Total 73

Of the open-ended comments provided, around half appeared to support the proposed ratio, however, many of the comments included caveats, expressed reservations or offered suggestions to improve the Code's clarity.

For example, some suggested that the proposed ratio was only a barely acceptable minimum or was insufficient:

"I agree but believe this should be a minimum ratio I would prefer to see 1:30 to cope in exceptional busy times." (Funeral director organisation)

"… If a company is providing 50 funerals a year - are you assuming that they will only be storing 1 body at a time? And likewise, if a company is providing 200 funerals a year (which would make it a busy business) - having a mere capacity of 4 refrigerated spaces would not be anywhere near sufficient to guarantee a proper storage of bodies. What happens to those bodies that will have to remain unrefrigerated possibly for weeks? This is hugely insufficient!" (Funeral director organisation)

Relatedly, others stated the ratio was a good starting point, but highlighted the importance of building flexibility into the final requirement. This included flexibility in terms of time, seasonality, or business needs. A set of respondents also noted that the number of people who die at any given time is largely unpredictable and that more thought needs to be given on how this requirement is ultimately written in the Code:

"1 to 50 is a reasonable number to start but will there need to be adjustments in the future to account for periods of high volume e.g. Christmas and New Year breaks, Procurator Fiscal delays etc. Also does the volume of embalming to deceased in care have to be taken into account for businesses operating with fewer fridges" (Funeral industry trade body)

"… there is a risk that, by prescribing a specific number of refrigeration spaces, regulated parties will focus solely on achieving compliance with this requirement and will lose sight of the outcome it is seeking to achieve… Our suggestion would be to insert a mandatory requirement that all funeral directors should take reasonable steps to ensure they have a sufficient refrigeration spaces available, taking into account their business needs and all the information available to them. This mandatory provision could then be accompanied by some helpful guidance, suggesting that a ratio of 1 to 50 (or whatever ratio is deemed appropriate) is likely to be adequate for the majority of businesses." (Funeral industry trade body)

"Because of the irregular nature of death there may be a large number at one point and none at others. Making it very hard to quantify a ratio but feel it perhaps should be nearer to 1 to 25." (Funeral director individual)

The comments raised a number of further issues with the proposals around refrigeration spaces. Some respondents questioned how 'future proof' it was, stating that things like population ageing, climate change and changing social mores (e.g. increasingly extended periods between the date of a person's death and their funeral) might render this ratio inadequate. Several respondents specifically highlighted the impact on the NHS that the refrigeration requirement may have:

"There are times of the year when the death rate is higher, for example winter illnesses and bad weather can impact on death rates. Deceased have to be stored longer when registrars, GPs, COPFS and burial and cremation authorities are closed for longer periods over Christmas and New Year. Often NHS premises are used as free storage by funeral directors who do not have spare capacity. This impacts on the NHS and their ability to function." (Individual)

In addition, some respondents felt the proposed ratio may disproportionately affect SMEs/rural funeral directors more than large/metropolitan funeral directors. Some of these responses highlighted external factors that need to be taken into account when setting the ratio or suggested how the potential effect(s) of this requirement on SMEs/rural funeral directors may be mitigated by the businesses themselves:

"I think more to the ratio of 1 to 30 as with the closure of local hospital mortuaries in [local area], our refrigeration facilities can be used more frequently than before." (Funeral director organisation)

"We consider that multi-site operators such as ourselves should be able to operate safely and efficiently at a lower ratio than smaller funeral directors or single site operators. However, it may be appropriate to consider setting the ratio based on the number of funeral homes owned and operated by providers in a particular geographical area rather than on an individual home basis." (Funeral director organisation)

"Refrigeration should be a requirement, a ratio of 1 to 50 is certainly a reasonable assessment. Smaller firms may not have the space or money to install refrigeration, but our members feel they should look to have an agreement in place to give them access to refrigeration if required." (Funeral industry trade body)

A small number of respondents also offered alternatives to a set ratio requirement for the Scottish Government to consider. These dealt with access to space and transparency for consumers:

"If [T]he Scottish Government is intent on imposing compulsory access to refrigeration it would make far more sense to propose a requirement of either provision of or access to sufficient refrigerated space to ensure that all those in their care can be kept in refrigerated conditions at all times." (Other organisation)

"… there must be adequate provision of refrigeration spaces. However, we believe that the best way to address this is through increasing transparency to consumers on provision, rather than making it a mandatory requirement to have a specific ratio." (Funeral director organisation)

Finally, similar to Question 1, one respondent also raised the issue of how families might be supported to care for the deceased person at home for a period of time, in light of this potential requirement:

"Adequate refrigeration facilities is crucial for the sensitive care of the deceased. However, I also work with families to keep their loved ones at home for periods of time - with appropriate cooling system and would hope this aspect would continue to be supported - with managed help and guidance from the Undertaker." (Funeral director individual)

Question 3

Do you agree there should be flexibility for the funeral director to provide refrigeration either as part of their business model, or to be able to access refrigeration by means of a formal Service Level Agreement (SLA) with a refrigeration provider/another funeral director?

Seventy-four of the 86 total consultation respondents answered Question 3.

Overall, 45 respondents expressed agreement ('agreed' or 'strongly agreed') that there should be flexibility for funeral directors to provide refrigeration. A further 24 expressed disagreement ('disagreed' or 'strongly disagreed')'. See Table 5 below.

Table 5: Responses to Question 3.
Answer Number
Strongly agree 20
Agree 25
Disagree 15
Strongly disagree 9
Don't know 5
Total 74

Where respondents indicated agreement with the proposal, they often commented that they were content with an SLA option in cases where a funeral director had limited storage capacity. Others suggested that these arrangements might remove barriers to entry into the industry, would particularly benefit SMEs/rural funeral directors, or have benefits for NHS mortuaries:

"This allows companies to specialise and provide central, excellent services to a number of small businesses. It would enable funeral directors and celebrants to have intimate, pleasant high street spaces to meet families and then store bodies at secure units elsewhere, transporting them only for viewing." (Non-funeral director organisation)

"Without this flexibility there would be barriers to entry for new undertakers wishing to start new businesses by requiring any premises be large enough to house refrigeration and requiring the purchase of refrigeration equipment. Permitting access to refrigeration by means of a formal SLA with a refrigeration provider / another funeral director is a fair approach to this issue."(Other organisation)

"Many independents operate with the assistance of larger funeral directors and do not have their own facilities. Forcing them to need this would put them out of business and leave open national companies to dominate." (Funeral director organisation)

Some respondents who expressed agreement with the proposal provided caveats in their comments. For example, some argued that SLAs should be formalised and subject to an inspection regime. Others commented on the importance of making clients aware of any arrangement in place between the funeral director and a third party refrigeration provider, and ensuring families were aware where their loved one's body was being stored:

"As long as an agreement is in place, and the inspectors also inspect these 3rd parties I do not see why this would be an issue. It would support smaller funeral directors who do not necessarily have the space or financial ability to provide their own refrigeration facility." (Individual)

"All deceased should have use of the same level of facility and consistency should be offered across the profession regardless of size of business. If this is to include an SLA with another provider the family should also be aware." (Funeral industry trade body)

"it is important that there is transparency over these arrangements with consumers able to understand whether the funeral director uses their own mortuary facilities or those of another provider. This impacts the flexibility that the funeral director can provide in terms of viewing the deceased and also leads to different levels of liability for the funeral director and other service providers involved. There should therefore be an obligation on funeral directors to declare this information." (Funeral director organisation)

There were also a smaller number of comments which suggested respondents disagreed with the proposal. These fell into two broad categories: those who held firm views that no SLAs should be allowed under any circumstances; and those who disagreed for logistical reasons.

A number of comments were made against the introduction of SLAs. These tended to suggest that having their own refrigeration should be a basic requirement for a funeral director, and/or that levels of service would be compromised if this was in some way outsourced. For example:

"I believe to operate as a funeral director a properly equipped mortuary with refrigeration must be your first and main priority with no flexibility at all."(Funeral director organisation)

"This seems a way for providing unsatisfactory care and avoiding/delegating responsibility. To provide a funeral directors service a very significant part is care of the deceased which requires minimum facilities. The ability to refrigerate is the most fundamental and basic of these acts of care. Who would be responsible for monitoring? Who would be held responsible for accidents, deterioration etc. under an SLA?" (Individual funeral director)

Certain respondents who disagreed with this proposal for logistical reasons highlighted issues relating to family access and respect for the deceased:

"Using other providers is not ideal for the bereaved families as it restricts the flexibility for viewing the deceased." (Funeral director organisation)

"I feel the funeral directors should themselves provide adequate facilities to avoid unnecessary movement of the deceased unless exceptional circumstances arise. This is more respectful on all levels."(Individual)

Finally, certain respondents indicated the Code should be made clearer if the proposal was to be acceptable:

"The draft [Code] states audited monitoring every 24 hours by the funeral director, not the third party, as they have no contract with the deceased's family. An SLA for this within this code is unworkable or worse too onerous to be regarded as believable. Added to this, in times of stress, there is the very real risk of decedents being looked after under an SLA to perhaps not be as important as the third parties' own decedents under care and being removed prematurely from temperature control. There is insufficient guidance offered about the SLA option for a considered opinion." (Funeral director organisation)

Question 4

If you own or operate a funeral director business, do you think the requirement to refrigerate deceased people will have an impact on your business?

Sixty of the 86 total consultation respondents answered Question 4. It was directed at funeral directors specifically, which may have impacted the response rate.

Table 6: Responses to Question 4.
Answer Number
Yes 9
No 46
Don't know 5
Total 60

Overall, a majority (46) responded 'no' to Question 4, indicating that the requirement to refrigerate deceased people would not have an impact on their business (or 'a funeral director's business' for those respondents to Question 4 who are not funeral directors).

Of the respondents who selected 'no' in response to Question 4, 33 provided further comments. Most of these stated that the respondent's business was already compliant with the requirement and provided no further explanation and others reiterated the importance of refrigeration in the care of the deceased. Comments from funeral industry associations noted they already require their members to either have refrigeration within their own premises or are able to demonstrate they have access to suitable care facilities.

In contrast, nine respondents selected 'yes', indicating that this requirement would have an impact on their (or a funeral director's) business. These impacts included that some funeral directors may have to move to different or larger premises to accommodate the equipment, and that this requirement would have important cost and investment implications for businesses. Comments on cost ranged from simply agreeing that investment would be needed, to explaining why the cost implications (e.g. for maintenance, electricity and high capital expenses) would be significant for some.

In contrast, other respondents who selected 'yes' noted that the impact may be more positive, in terms of improving the service provided, and increasing public confidence in the service.

A number of other observations or issues were highlighted in the comments to Question 4,. First, five respondents stated that refrigeration was a necessity in the preservation of deceased people.

"…even if a funeral director doesn't have these facilities, as long as they have access to them if they are required, that is what is important. Simply having air conditioning or routinely embalming people so they don't necessarily have to be placed in a fridge, isn't good enough." (Funeral director organisation)

Second, and relatedly, an additional respondent raised a concern that refrigeration requirements in the Code may result in more people being encouraged "to have their person embalmed so they don't have to the be kept in a fridge" (Funeral director organisation).

Thirdly, as mentioned elsewhere in this report, a small number of comments suggested this requirement may significantly impact SMEs/rural funeral directors, expressing concern these firms may not be able to meet these requirements.

Finally, one respondent again highlighted a concern about whether this provision would allow for families to care for the deceased at home.

Question 5

Would offering viewing of deceased people as a service have an impact on a funeral director business?

2.1 Seventy-one respondents answered Question 5 (see Table 7). Overall, a majority (44) of those who responded to Question 5 answered 'no', suggesting they do not think that offering viewing of deceased people as a service would have an impact on a funeral director business. Nineteen respondents selected 'yes', indicating they thought there would be an impact.

Table 7: Responses to Question 5.

Table 7: Responses to Question 5.
Answer Number
Yes 19
No 44
Don't know 8
Total 71

The open-ended comments provided in relation to Question 5 suggested most respondents were generally supportive of funeral directors providing viewing as a service. From those who indicated they were supportive, approximately half indicated they already provided viewing as a service and the other half supported it as a standard practice (even going so far as to suggest that not offering it would be unacceptable).

In contrast, a small minority of respondents indicated that that this should be a business decision and funeral directors should not be required to offer viewing as a service, if they are transparent about the services they do offer. Some respondents felt that a requirement to offer viewing may have unintended consequences, for example related to cost:

"We… do not believe that offering viewing of the deceased should be a mandatory requirement of the code. Instead, greater transparency to consumers at the outset as to whether this is offered would allow them to make more informed choices when making a purchasing decision. There should be a requirement on funeral directors to disclose this clearly whether this is offered in product information and when providing a quote to the consumer." (Funeral director organisation)

"…If the Code required viewing to be offered as a choice for all funerals within Scotland, this would add cost to the service which would ultimately be payable by the client." (Funeral director organisation)

Two further sets of considerations were raised in the comments to Question 5. First, was that some business models or services (specifically direct cremation services) may be impacted by a requirement to offer or facilitate viewing.

Second, consistent with comments in response to previous questions, some drew attention to the potential for smaller funeral directors to be more significantly impacted than large/metropolitan funeral directors, because of space or cost implications.

"It would not impact upon our business as we already provide this service but there are some smaller businesses who do not have suitable premises to allow this which we feel is unacceptable." (Funeral director organisation)



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