Section 5: Deceased's wishes (Part 4)
This section of the guidance explains Part 4 of Schedule 28 and the obligations placed on a local authority and Scottish Ministers when considering a deceased person's wishes, religion or beliefs, where known, for the method used for their final committal (i.e. burial or cremation).
5.1. The powers in Part 2 of Schedule 28 enable local authorities and the Scottish Ministers to direct organisations as necessary to relieve pressures in the death management system and ensure effective working of the system. Local authorities and the Scottish Ministers are under a legal obligation under Schedule 28 to have regard to the deceased's wishes or, where the deceased's wishes are not known, their religion or beliefs.
5.2. These matters are sensitive and personal. Whether the deceased should be buried or cremated is of the utmost importance to many people, including those of certain faiths and beliefs. As such, faith and belief groups have been consulted on this Schedule to the Act, and on this part of the guidance, and these matters must be considered before powers of direction are used.
5.3. Local authorities should undertake relevant consultations as early as possible with local religion and belief organisations.
What does this practically mean for local authorities or the Scottish Ministers when issuing directions?
5.4. This means that local authorities or the Scottish Ministers should make a reasonable attempt to ascertain the deceased's wishes for their final committal (whether to be buried or cremated), by:
- consulting any available record of the deceased's wishes, such as an "anticipatory care plan"
- contacting and consulting their next of kin, family members or close friends to understand the deceased's wishes.
5.5. If unable to locate the deceased's next of kin, family members or close friends, local authorities or Scottish Ministers should, where relevant, contact the deceased's faith or belief community, if any. Local authorities or the Scottish Ministers will be expected to take into account their consultations with relevant religious, faith or belief groups and follow the guidance given as this could provide a reasonable inference of the deceased's preferred method of committal (i.e. burial or cremation).
Local authorities or the Scottish Ministers should be aware that there are times when it may not be possible, for religious reasons, to contact people from particular faith or belief communities. They should take account of such cases before proceeding.
5.6. If the deceased's wishes for their committal are ascertained, the designated local authority or the Scottish Ministers should make directions under paragraph 5 of Part 2 of Schedule 28 so that the deceased receives their preferred method of committal, subject to the further guidance provided in paragraphs 5.13 and 5.14 below.
5.7. If the steps in paragraphs 5.4 and 5.5 are followed, and the local authority or the Scottish Ministers has / have been unable to discover the deceased individual's wishes or any guidance from religious, faith or belief groups, then the local authority or the Scottish Ministers will have made reasonable attempts to discover those wishes, and may issue a direction for committal of the deceased.
5.8. Local authorities or the Scottish Ministers should also where possible consider personal preferences for other aspects of the death process, including any requirements the deceased may have had in relation to their religion or belief, in addition to method of final committal. These considerations must be balanced with operational requirements and the capacity of mortuaries.
5.9. When local authorities or the Scottish Ministers are issuing a direction for final committal under Schedule 28 the direction should ensure that
- the deceased's body is buried or cremated in line with their wishes.
- the deceased's body is buried, or their cremated ashes interred, in the appropriate section of a specified burial ground or cemetery based on the wishes of the deceased, including any requirements they had in relation to their religion or belief, such as the removal of ashes in line with wishes.
How should local authorities and the Scottish Ministers demonstrate implementation of Part 4?
5.10. As set out in paragraph 5(7) of Schedule 28, designated local authorities must keep records of the decisions made and the rationale behind these . This must include demonstrating having due regard to the deceased's wishes, if known. This should include the following information – a record keeping template is included at Annex D:
- recording the steps taken to find out the deceased's wishes, or religion or beliefs;
- recording the steps taken to comply with the deceased's wishes, or religion or beliefs;
- recording the decisions taken, including the rationale, for departing from the deceased's wishes, or religion or beliefs (if that has become necessary – see paragraphs 5.13 – 5.14 of this guidance).
5.11. The appropriate period for which records need to be kept is a minimum of five years. However, under the GDPR as implemented by the Data Protection Act 2018, personal data, such as next of kin details, should not be kept for longer than it is needed.
5.12. Local authorities must submit records to the Scottish Ministers if requested. This will ensure transparency and central oversight.
Are there any circumstances in which local authorities or the Scottish Ministers can make a direction that goes against an individual's wishes, religion or belief?
5.13. Making a direction for cremation or burial that would go against an individual's wishes, religion or belief must be the last resort and only used if there is a severe public health risk in not doing so, for example if there was no body storage availability, and no way of alleviating the pressures through other means.
5.14. Before this extreme measure is considered, local authorities or the Scottish Ministers must nonetheless have regard to the deceased's wishes. In the context of the obligations contained in Part 4 of the Schedule, local authorities or, if applicable, Scottish Ministers will be considered to have had proper regard to matters described in that Part if they demonstrate they have included in their deliberations all relevant considerations in particular the following:
- considered whether cremation or burial capacity can be increased using other measures, such as:
- whether Part 2 Powers of Direction can be used to increase cremation or burial capacity by creating new burial sites, lengthening crematoria operating hours or, where relevant, ensuring full utilisation of the burial sites of the deceased's religious group
- whether the body can be committed in line with the deceased's wishes in an area outwith their local authority area.
- consulted local community, faith and belief groups to understand whether there are any alternative mitigations available
- considered whether the body can be stored for longer, embalmed or frozen until it can be committed in line with the deceased's wishes. This is only an option if it complies with public health guidance onstoring and handling the deceased, and with the understanding that certain religion and belief groups require rapid disposal of the body after death.
- sought out best practice and assistance from other local authorities and industry partners.