Regulation

The lion rampant?

24 October 2017
Fran Hall
4 Comments
Categories: National Association of Funeral Directors, Regulation, Regulation of the funeral industry

Editor’s note: We received this blog post from Mark and publish it as we feel it raises matters of great concern to funeral consumers and practitioners alike.

Out of courtesy, we provided the NAFD with an advance copy and invited them to comment.

We were advised that their legal team required several statements made by Mark in his original post to be removed, and he has obliged by doing so. His post below is amended accordingly.

We have been supplied with an official response from NAFD President Alison Crake which we are required to publish in full. This response can be found below Mark’s observations.

Guest post by Mark Binnersley, Communications Consultant

‘The NAFD – what is its point?

I care deeply about the funeral profession. I care even more about how we treat bereaved people. So it is depressing to see the National Association of Funeral Directors in the midst of a protracted existential crisis.

From what I witnessed as an employee between spring 2016 and summer 2017, it seemed like it didn’t know whether it wanted to be a trade association or a regulator.

Any dreams the NAFD might have of becoming regulator in Scotland are unlikely to get out of the starting blocks. There’s no way the Scottish Government is going to allow funeral directors to mark their own homework. And quite right too.

Self-regulation often fails because industries have a tendency to put their own vested interests before public protection. It’s an indisputable fact.

The association should certainly think carefully before making any calls for regulation of the funeral profession in England and Wales.

I take the view that it is wiser to see how regulation in Scotland pans out before wishing it on English colleagues, and crucially to respect the vote against “regulation by Government” by members at the association’s annual conference in 2016.

Besides, has anyone asked officials in Whitehall whether they would like to regulate English or Welsh funeral directors?

No. And to my mind there is no appetite.

Anyone who thinks regulation of funeral directors might stand a chance of becoming Government business amid the shambles that is Brexit would have to be seriously deluded or suffering from a clinically-problematic overinflated ego.

If I were a small, independent member of the NAFD, I would also be wondering what the point of the association is and, with an inflation-busting 5 per cent subscription increase planned for 2018, would be considering the following three questions.

Firstly, is the NAFD going to help my business grow? Well, it’s not going to refer funerals to me, so that answer to that question has to be no.

Secondly, what protection does membership offer my business? It hasn’t managed to stop regulation in Scotland and it hasn’t halted the spread of local authority trading.

The reason it hasn’t been able to influence either of these developments is because it cannot afford to alienate its larger members. For your Co-operative Funeralcare, Dignity and Funeral Partners, regulation and local authority contracts represent an opportunity. Faced with a situation like this, the NAFD has little choice but to offer its support or make nuanced opposition at local level. Like a heroin addict, the association is hooked on the big boys’ subscription fees.

And thirdly, what is the NAFD doing to raise public awareness of the advantages of asking one of its members to conduct a friend’s or relative’s funeral?

The issue of public profile is being scarily overlooked as a result of the association’s obsession with regulation in Scotland.

Many members join the NAFD because they are led to believe that putting the lion logo in their shop window makes them look like they adhere to a set of standards.

However, just as many members know that the NAFD brand has near zero profile and the sticker means very little to your average bereaved member of the public. Indeed, an independent YouGov poll, commissioned by the NAFD, showed that only 7 per cent of people had heard of the association.

The NAFD really needs to develop a campaigning culture when it comes to public relations.

If it is to truly add value to its members, it should run a series of public information campaigns aimed at raising its profile and showing people the benefits of choosing an NAFD member over non members. It should be out and about at public events, talking to its members’ potential clients.

For some reason, it seems to prefer reactive PR, which is good for self-assurance but does diddly squat for one’s profile.

There’s no hope of this changing whilst the association obsesses over regulation. But if as a result of statutory regulations it is no longer to be seen as the upholder of industry standards – certainly in Scotland – then what is it for?

Other sectors – take for instance insurance – seem to find space for their trade association(s) to co-exist alongside regulation and continue to add value to members.

Another question members ought to be asking relates to staff resignations. Six employees have left or announced early retirement from the association since June this year.

The NAFD needs to be doing much more to promote its CPD and lobbying activity and show the public, through concerted campaigns, what a good funeral director looks like.

There are plenty of them in membership of the NAFD.

Sadly, their interests are being overlooked because the association doesn’t seem to know what it’s for at the moment.

I’ve written this blog in order to start a conversation, as someone who cares about the funeral world and more importantly the vulnerable people it serves.

I wonder what founder Henry Sherry would make of it all.’

Response to above by Alison Crake, NAFD President

‘Mark Binnersley made many positive contributions to the work of the NAFD, during his short time in our employment, which makes his short sighted and poorly informed assessment of our work all the more surprising and disappointing.

He has dramatically overstated both his level of influence and access to information during his time with the NAFD in suggesting that, after working with the profession for only a year at a junior management level, he had assumed greater knowledge and strategic insight than funeral directors who are caring for bereaved people on a daily basis – many of whom have been in business for generations. He was certainly aware of some key developments which took place during his tenure and contributed his thoughts towards decision making, but he was by no means any kind of lone voice of reason and there were many discussions and decisions made, at a more senior level, which he simply was not party to.

In addition, given that Mark has not been in the NAFD offices since late June, almost four months ago, he is unaware of any significant or strategic developments during that time, rendering his views somewhat outdated.

Nevertheless, I would like to address some of the key points in Mr Binnersley’s blog post.

Far from being in the midst of an ‘existential crisis’, I am sure the bereaved families who look to the Good Funeral Guide (GFG) for guidance would be reassured to know that the NAFD, which oversees standards for 80% of the UK’s funeral directors, is quite clear and resolute about its core purpose but, equally, remains unafraid to talk to a wide community of stakeholders, in a time of change, to make absolutely certain that it is meeting the evolving needs of bereaved people, as well as the needs of the funeral directors that care for them. 

Equally, his assertions that the NAFD had ‘dreams’ of becoming a regulator in Scotland bear no resemblance to reality. Certainly we were, and remain, prepared to be a statutory regulator if ever the need arises, building on our current, respected, self-regulatory role. However, our main priority is to work with the Scottish Government as closely as possible on the implementation of regulation to ensure that it is proportionate, assists funeral directors in delivering high standards and acts in the public interest. Mr Binnersley is right, there is little appetite for regulation in Westminster at present and we’ve never called for it. However, in a YouGov survey in 2016, 80% of Britons said regulation of the funeral profession was important and therefore it would be remiss of us not to demonstrate our experience as an effective self-regulator to Government, highlight to our members the possibility that it might one day come, and work with them to ensure they maintain the highest possible standards of operation, irrespective of which organisation is overseeing their work.

I am sure GFG readers would also be reassured to know that, as a not-for-profit organisation, the 5% subscription increase that he refers to will be ploughed into additional education resources to train funeral directors to the highest standards, into our inspections and standards regime, and into planned initiatives that will provide even more information and support to the public when they experience a bereavement. For more than 90% of our members, the increase represents less than £1 a week extra for each funeral home they own and, as a result, the proposed increase was comprehensively backed, by members of all shapes and sizes, at our half year AGM last week.

We can always do more, but that is true of all organisations. However, the NAFD has been transparent in its commitment to evolve in the face of the changing needs of families, Government and our members, and I do not understand why Mr Binnersley feels this to be a bad thing? Although he was aware of these conversations during his time with the NAFD, he resigned without being involved in any level of decision-making about the way forward.

I do feel I should point out to Mr Binnersley that, in 112 years of the NAFD, its’ role has never been to ‘refer business’ to its members. We are not a sales promotions agency and this fundamental misunderstanding, on his part, of our role within the profession, only emphasises his lack of authority to speak on these matters. The NAFD’s role is to provide advice and support; to promote and monitor adherence to our Code of Practice and Code of Professional Conduct; to build relationships with Government and speak on members’ behalf; to use its collective buying power to help members run their businesses effectively and to signpost the public towards both sensible information and the details of all NAFD members in their local area. 

I am immensely proud to be President of such a progressive, determined and supportive organisation. The NAFD is also democratic, with our members all having one vote, irrespective of size and led by an Executive Committee, drawn from all sections of the profession, with small independent funeral firms representing 60% of the committee’s membership.

I am sorry that Mark has chosen to criticise from the outside, rather than shape the profession’s future from within. As a funeral director of 38 years, the ongoing wellbeing of the families I care for, across Teesside, are the reason I do this job and I know that this sense of duty is true of the vast majority of NAFD members. The fact that we choose to pool our collective experience, expertise and resources, under the umbrella of the National Association of Funeral Directors, in service to bereaved families across the UK, should give GFG readers confidence to know that they can turn to an NAFD member in their time of need and know they will be professionally and compassionately cared for.’

About time too?

4 July 2014
Charles
No comments
Categories: funeral directors, Regulation

Lord Bonomy’s exasperation with the NHS, cremation authorities and funeral directors, whose ill-informed advice and guidance led so many thousands of parents of babies who had died to suppose that there would be no ashes after cremation, caused him to recommend the establishment of an inspectorate of crematoria:

Scottish Ministers should appoint an independent Inspector to monitor working practices and standards at crematoria, provide feedback to Cremation Authorities on how they are performing and to report to the Scottish Ministers as required. The independent Inspector should have authority to investigate complaints from the public about working practices and standards at crematoria, to adjudicate upon these complaints and report findings to the Scottish Ministers. 

But he doesn’t stop there. He wants the clean-up to go further. Given the circumstances, it is entirely reasonable that he goes on to recommend that:

The role of the Inspector should be extended to the funeral industry in respect of which there is no current provision for inspection.

There’s a fine bombshell for a Friday morning.

Hat-tip to JB for highlighting this.

What would a regulated funeral industry look like?

2 December 2013
Charles
12 Comments
Categories: Featured, funeral directors, Regulation

When people discover that you need a licence to open a cattery in this country, but not a funeral home, they are astounded. You’re kidding; surely they’re all qualified? Er, nope. Actually, some undertakers do sit an exam set by the undertakers’ trade associations, but it’s not compulsory. No, you can do a long sentence for cannibalism in Britain, and set up as an undertaker the day you’re released.

This may not seem right, but it doesn’t mean to say it’s necessarily wrong. The object of any legal framework must be to protect citizens from predation by bad people, not to protect them from themselves. If funeral shoppers make bad choices, whose fault is that? How many bad guys actually are there out there?

Over in New Zealand the Law Commission, a body which reviews areas where laws might be reckoned necessary, has turned its attention to the licensing of undertakers and the regulation of the NZ funeral industry. Because New Zealand shares most of its DNA with the English and the Scottish legal systems, the deliberations of its Law Commission are extremely interesting to us over here.

The proposals the Commission has put out for public consultation take account of the diverse needs and wishes of bereaved people, including those informed by religious dogma or a desire to go down the DIY route: “Ideally, the public would continue to be able to opt out of using a funeral director … we are mindful of the risk of creating barriers to alternative styles of funeral preparation.”

The Commission has tried to be careful not to make recommendations which would incur compliance costs and, therefore, put up the cost of funerals. That could be wishful thinking.

Their recommendations give us a pretty good idea of what regulation of the industry might look like in the UK.

The industry in NZ is presently similar to that in the UK. It’s self-regulating. Their NAFD is the FDANZ and their Saif is the NZIFH. Some 60 per cent of undertakers are members of trade associations, and between them they arrange around 85 per cent of NZ funerals. As in the UK, they report very few complaints — which are dealt with in a very similar way. There is a growing band of boutique undertakers, greenies, empowerers and the like, many of whom are not members of a trade association. FDANZ membership is declining. One big difference from the UK is that in NZ most people are embalmed. Another is that in NZ it is very hard for a funeral shopper to buy a coffin whereas in Britain it is very easy and becoming commonplace.

As in the UK, funeral shoppers are supported by consumer protection laws. But the Commissioners worry about consumers’ lack of information, which handicaps their bargaining power:

“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.” 

Whose fault is it that bereaved people seek information too late? How could a law alter New Zealanders’ eyes-shut-tight  relationship with death? 

The Commissioners also worry about “the potential for serious emotional distress arising from unethical or inappropriate behaviour over the handling of the dead combined with the unique vulnerabilities of the clients.” The case they have in mind is this one; I’m not aware of any others.

The Commissioners get behind 2 proposals in particular, proposals which would inconvenience a good many of our best British undertakers. First:

a)  a requirement that all funeral service providers proactively disclose on their websites and other promotional materials the prices for the separate elements of the different services they offer; and 

b)  a requirement that they disclose to potential customers the qualifications held in relation to the different services provided, and inform customers of their affiliation or non-affiliation with an industry body that has a code of ethics and a complaints system.

Their second proposal is that:

a)  a mandatory requirement would be introduced for all those providing funeral services to the public to be licensed by the appropriate local authority; 

b)  before obtaining a licence the applicant would have to demonstrate to the local authority health inspector that they understand the health risks associated with handling deceased bodies, have access to suitable premises and transportation methods, understand the legal obligations regarding death and cremation certification, and are a “suitable person” to be providing such services to the public.

This would put UK funeral homes on a par with UK catteries. 

If legislation were to be enacted it would be unlikely to stop there — it never does. Regulation creep would likely infringe the ancient right of New Zealanders to care for their dead themselves. Consider this response to the Commission proposals: Cremation Society of Canterbury general manager Barbara Terry said there were also issues relating to families who wanted to bypass a funeral director and go “DIY”. She had 10 calls a week from people wanting to do their own organising and even had one who called up wanting to drop his mother off in a sleeping bag before “popping” her in the crematorium. “Who is setting the standards ensuring there is dignity in death?” she said. There needed to be more guidance for families on the issue and what it entailed.

Dignity. What on earth is that? How do you define it? How do you legislate for it? How, for example, does an undertaker ensure that bearers bow to a coffin with complete sincerity?

Here at the GFG we incline to the libertarian view: we’re against regulation. The public needs to get real about death. The big issue here isn’t their ignorance as negotiators, it’s the way their ignorance prevents them from arranging really meaningful funerals. Consumer scrutiny and information websites like this, combined with the GFG accreditation scheme, are enabling more and more people to equip themselves with the knowledge they need. Caveat emptor, we say, and leave well alone. 

You, though, may well think otherwise.

There should be a regulation against it

31 October 2012
Charles
No comments
Categories: Regulation

In the event, there wasn’t a lot of call for regulation of the funeral industry in the aftermath of the TV exposés of eyebrow-raising behind-the-scenes practices at branches of Funeral Partners Ltd, Co-operative Funeralcare and Dignity plc. 

There’ll always be those who want it, of course, and some of them work in the industry. But is regulation a panacea?

Below, there’s a newsclip from NBC highlighting recent industry malpractice in California.

Above, two YouTube clips showing Daniel Mandel’s hearse on fire after he sideswiped another vehicle. In the first, you can see him leaning against his hearse smoking a cigarette, hapless and, as it happens, drunk. Police managed to get the casket out before it was engulfed. It contained the body of a holocaust victim.

It looks as if regulation may fall a long way short of a panacea.

Busybody nonsense

14 August 2012
Charles
14 Comments
Categories: ashes, burial, DIY funeral, funeral directors, Regulation, Rights of the bereaved

Christopher Harris

Some time this evening Christopher Harris will deliver the following speech to Woodstock Town Council, calling upon it to strike out its requirement that the interment of his father’s ashes be superintended by a funeral director.

Here’s another example of someone tenaciously pursuing the rights of the bereaved with an important test case. The ‘bereavement charity with expertise on relevant law’ to which Christopher refers is the AB Welfare and Wildlife Trust, which is administered by the indefatigable John Bradfield, who has done so much to establish the rights of the bereaved. Almost certainly no one alive knows the law around these matters better than John, whose book, ‘Green Burial — The DIY Guide to Law and Practice’, contributed so much to the empowerment of the natural burial movement. 

Chris will attend the meeting dressed as an undertaker in order to make the point that undertakers are self-appointed. 

WITHOUT PREJUDICE

Address to Woodstock Town Council
Tuesday 14 August, Woodstock Town Hall – Mayor’s Parlour

Dear Councillors

My father, Richard Harris, died on Wednesday 23 May this year. He resided in Woodstock for almost 40 years. In early  July I approached the Town Council with a view of interring his cremated remains in the local Lawns Cemetery, however I was informed that the Council could not deal directly with me, citing the current Cemetery Rules and Regulations .

Those Rules and Regulations state that ‘all interments and memorials must be arranged by an approved professional firm‘. It is apparently implicit by this statement, according to this Council that,

“A fundamental part of an interment is the actual placing of the remains in the grave or cremation plot and there is therefore an implicit requirement of Woodstock Town Council that the professional firm that is organising the funeral oversee this in order to confirm that the arrangements have been fully complied with.”

This Council is almost unique in its Rules & Regulations on this matter. The only other council which makes the same stipulation is Deddington Parish….

Parishioners have a common law right to use public cemeteries in their own areas. Those experts with whom I have consulted are of the opinion that this legal right cannot be obstructed  by demanding that undertakers be used.

There is no legal requirement to use undertakers for any purpose. The Department of Work & Pensions, clearly states that undertakers do not have to be used in order to qualify for a Funeral Payment. The ‘direct.gov’ website states that undertakers do not have to be used, so why does this town council?

The funeral industry is estimated to be worth £1billion per annum in this country. The industry is unregulated and unlicensed. There are no professional exams, nor accreditation. It begs the question, what is a ‘professional approved firm’ that this Council requires. And who decided the criteria in this Council as to which undertakers are approved? Is it the same people who, in March of this year, are minuted that the newly updated Rules and Regulations and associated documents pertaining to the Cemetery were ‘very comprehensive’? I must agree…they are…very comprehensively flawed. One of those documents is entitled ‘By-laws’, but I am reliably informed, that this Council does not have any by-laws unless they have been approved by a Secretary of State.

This Council is a member of the Institute for Cemetery & Crematorium Management. For many years, that organisation has had its ‘Charter for the Bereaved’, which sets out the highest standards for running public cemeteries. It clearly states that everyone has the right not to use undertakers.

Public cemeteries, have long been run by parish councils with few or no staff. They have never passed management responsibility to undertakers. According to those with whom I have consulted, this Council, (and Deddington’s), are believed to the first to step out of line. Therefore, this issue is of national importance.

So, what is the law? At face value, Article 3 in the Local Authorities Cemeteries Order, might appear to allow this Council to have any rules, which councillors deem desirable. However, rules are only lawful if they result in the “proper management” of the cemetery and do not breach other relevant legal principles, such as those found in the Localism Act 2011, Administration law and human rights.

The primary purpose of administration law, is to prevent all public services, including this Council, from abusing their powers. Such abuses and decisions which go beyond available powers, are unlawful or “ultra vires”.

Decisions must be impartial, fair and reasonable. Arbitrarily imposing the same rule on everyone, along with a refusal to consider individual needs, has in some circumstances, been judged by the courts as unlawful.

Local authority councillors, must avoid anything which might result is suspicion of misconduct, even when suspicions are unfounded. That may be written into the Code of Conduct which this Council has adopted under a new law. The Localism Act (2011), imposes a legal duty to promote and maintain high standards. Though this is not an accusation, some may suspect that there may be collusion between those making and those benefiting from the Rules. The very possibility of such a suspicion, is in itself, a reason to abandon the requirement to use undertakers.

Some in this Council have tried everything within their powers, perceived and actual, to prevent me from speaking this evening, and the conduct of some has, I suggest, not been befitting of someone in their position.

• Selflessness

• Integrity

• Objectivity

• Accountability

• Openness

• Honesty

• Leadership

………are all principles under the Code of Conduct covered by the Localism Act (2011).

Should this Council elect to hold its discussion on Cemetery Rules & Regulations later this meeting,  ‘in Confidential’, it will leave itself open to continuing suggestion of impropriety bringing one or more of the 7 principles into question.

If this Council is minded to review, both its literature and practices, I can provide the name of a bereavement charity with expertise on relevant law, which would be willing to provide free assistance.

 In conclusion, I ask this Council to prove 7 points as documented , based on its current literature:-

(1) that it has the legitimate power to force newly bereaved individuals and families to use undertakers;

(2) that forcing everyone to use undertakers is not unlawful, according to public cemetery law, the Localism Act (2011), Administration law and principles on human rights;

(3)  that it is providing a sensitive “bereavement service” which reflects the same principles as those underpinning our health and welfare services. That means providing choices and opportunities, by being creative, flexible and empowering. It also means using sensitive language;

(4) that parishioners buy plots and are the owners of those plots;

(5) that it is correct to state that parishioners only own memorials and monuments for 25 years;

(6) that it can charge anyone who asks to look at the legally protected burial register; and lastly

 (7) that its “by-laws” really are by-laws, by making available the decision letter of the relevant Secretary of State.

It would be remiss to end my oration without mentioning my dad, a former resident and elector. It is my family’s hope that he’ll be on a corner some time again soon.

If not, for £70 more than what it will cost to have him interred in Woodstock, I can have his ashes blasted into Space on 10 October 2012, boldly going where no Harris has gone before… The price includes a tour of the launch pad, attending a memorial service and a DVD of the ‘event’.

RIP, Dad. Much missed and much-loved. xxx

The GFG is sending a reporter to this event and will report back tomorrow. 

When tickety-boo = tangled web

8 August 2012
Charles
12 Comments
Categories: Regulation

This blog doesn’t go looking for trouble, but it occasionally splashes into a little local difficulty. Can’t be too careful what you say, that’s the moral. Actually, the only entity that ever threatened to sue us was Promessa. You can’t be too careful of your friends.

We got into perhaps our hottest water when surveying the way regulation of the funeral trade works in the US, back in January 2009. It concerned a law in Michigan which requires a family to engage a funeral director to supervise the handling, disposition and disinterment of a dead person. We got our information from Thomas Lynch (yes, the Thomas Lynch). He told us: “In our state of Michigan the occupational group charged with collecting and registering these vital statistics and medical certification is licensees in mortuary science … an occupational class which it licenses and regulates.” He added: “In Milford we can’t burn leaves in the autumn, bury our trash in the back yard, drive an unlicensed vehicle or tend to the duties of our toilet in public.  Nor can we hunt squirrels, coyotes, deer or dogs in town.  “We the people” have made our laws, on these and a million other matters.  Including the dead.”

While this was going on, Lynch was busy suing Josh Slocum  of the FCA  and Lisa Carlson of the FEO, for libel. Both had vigorously attacked his defence of this law. When Lynch’s suit was thrown out we asked him to comment. He did so, on this blog, and was immediately counter-sued for costs by Slocum and Carlson on the strength of what he had said. It was embarrassing to be caught in the crossfire of people we admire greatly. Rupert Callender still writhes at the memory.

And so it came to pass that the GFG became Exhibit A in Case No. 08-CV-13949 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION: “The primary bases for Defendants’ motions for attorneys fees are certain statements Lynch purportedly made in the weeks following the disposition of the case. In Charles Cowling’s blog entitled “The Good Funeral Guide,” Mr. Cowling made a post on August 17, 2009 captioned “That Tom Lynch libel case.”  (See Def. FEO’s Mot. Br., at Ex. B.)  In the comments following the post, Mr. Cowling stated that he received the following in an email from Thomas Lynch…”

You can read the email here.

It was a learning curve that left a nasty taste in the mouth. It probably converted all who followed it into militant non-regulators. Regulation is only attractive to people who are ignorant of unintended consequences.

Over in the US there’s an interesting case developing right now. Rabbi Daniel Wasserman is suing the Pennsylvania board of funeral directors because it insists on supervising his funerals. In the words of his lawsuit, Wasserman “is now being threatened with civil action and criminal prosecution … for conducting religious funerals in place of licensed funeral directors who, under color of state law, interfere in purely religious observances for no other justification than personal profit.”

Wasserman’s case is that, under Jewish law, the care of the dead cannot be delegated – and rabbis cannot become licensed funeral directors because embalming is anathema to Jews.

There are no public health issues, no dangers to wider society. The Department of Health agrees that Jewish custom abides by all health laws.

Regulation and licensing are clearly desirable in areas where public safety is concerned. It’s why you have to employ a Gas Safe registered person to work on your boiler so that you do not blow up your neighbours.

Anyone in the UK who favours licensing funeral directors must answer this question: Should the law compel you to engage a contractor to do what you can perfectly safely and competently do for yourself?

It really is that simple.

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