Consultation on a Proposed Bill Relating to Burial and Cremation and Other Related Matters in Scotland - Web Only

Cremation forms and procedures

Power for Scottish Ministers to prescribe cremation forms

102 Section 7 of the Cremation Act 1902 provides the regulation-making power which allows Scottish Ministers to prescribe forms for authorising cremations. The current Form A (used to apply for a cremation) is prescribed by the Cremation (Scotland) Regulations 1935, as amended by the Cremation (Scotland) Regulations 1952, the Cremation (Scotland) Amendment Regulations 1967, the Cremation (Scotland) Amendment Regulations 1935 and the Cremation (Scotland) Amendment Regulations 2003. As discussed at paragraphs 16 and 17 it is intended to repeal the existing legal framework to provide a consolidated and modernised legislation. This regulation-making power will be preserved in the new framework.

103 The Commission noted a lack of certainty about whether the current Regulation 17, which relates to the return of the ashes to the applicant, applies to the cremation of stillborn children. Regulation 17 relates specifically to 'the cremation of a deceased person'. While the Commission argued that this Regulation applies to a stillborn child, it acknowledged that the interpretation is open to challenge, and recommended amending the Regulation so that it applies clearly and unambiguously to stillborn children.

104 Similarly, the Commission noted that the Mortonhall Investigation Report raised concerns about whether Regulation 15A, which relates to the cremation of body parts, applied to stillborn children. The Regulations define 'body parts' to mean 'any organs and tissue removed from a deceased person during the course of a post-mortem examination'. The Commission recommended amending this so that stillborn children are covered by this Regulation. There may also be questions over the extent to which regulations apply to pregnancy loss.

105 The new legislative framework will be constructed to apply unambiguously to the categories considered by the Commission, so that there is both legal clarity and a straightforward process for applying for a cremation.

Current procedures

106 The Infant Cremation Commission considered the current procedures for the cremation of babies, stillborn babies and pregnancy loss and identified a number of weaknesses in the system. In particular, a single form prescribed by the Cremations (Scotland) Regulations 1935 (Form A) is used to authorise all cremations which are prescribed currently by legislation. However, this is not adequate for every situation and does not provide a means for clearly and unambiguously recording appropriate information, including what should be done with cremation ashes. The Commission also noted that there are no statutory provisions covering the cremation of pregnancy loss and considered this to be problematic.

107 The Commission made a number of recommendations to address this situation, with particular focus on improving the forms used to authorise cremation. Some of the recommendations are specific to particular circumstances, while others apply to all the circumstances considered by the Commission. The Scottish Government accepted all the Commission's recommendations. Those which require legislative change will be considered in this consultation paper, with a view to implementing them in the proposed Burial and Cremation (Scotland) Bill.

108 The absence of cremation forms suitable for certain situations, as well as the lack of a formal process for pregnancy loss, has led to the development of practice whereby Cremation Authorities often adapt or supplement Form A with non-statutory forms in order to capture particular information for a given circumstance. This has led to the development of inconsistent practices.

109 To enable consistency and clarity, the Commission has recommended the introduction of specific cremation forms for particular circumstances:

• Stillborn children
• The shared cremation of pregnancy loss
• The individual cremation of pregnancy loss

110 There are a number of options to achieve this. The Certification of Death (Scotland) Act 2011 inserts a new section into the Registration of Births, Deaths and Marriages (Scotland) Act 1965 which allows Scottish Ministers to make regulations prescribing forms for the cremation of a deceased person or stillborn child. The section is constructed so that references to 'body' also relate to body parts. It is not planned to commence this section until March 2015. However, this does not cover the cremation of a pregnancy loss.

111 As such, it is proposed that the Burial and Cremation (Scotland) Bill should contain powers for Scottish Ministers to make regulations covering all categories of cremation, including the power to prescribe cremation authorisation forms. This approach will allow each form to be prescribed specifically and will enable further changes to be made to forms where required. The general approach being proposed by the Scottish Government is to give Scottish Ministers the power to make regulations to prescribe forms. That regulation-making power would be in primary legislation. This approach would enable regulations to be made as required using a relatively quick and straightforward parliamentary process. This approach means that the consultation paper is seeking views on general principles involved in forms, leaving the detail and wording of forms to be consulted on separately when those regulations require to be made.

112 In addition, the existing Form A will continue - in revised form - to be used for any deceased person who was born alive (including babies and infants).

113 The Commission has recommended that there should be statutory forms for several different categories of cremation. However, several of the recommendations apply to multiple forms - for example, statements about the recovery of ashes and what should be done with ashes, as well as the general approach of making forms as simple and easy to complete as possible. As such, it may be possible to prescribe a single application form for all categories of cremation, rather than having specific but similar forms for each category. The form would require certain sections to be completed in all cases - for example, the applicant should be required to make certain decisions about ashes - but particular sections could be left blank if they were not relevant to the cremation for which the application was being made. The form would still be set out in a clear and easy-to-understand way.

Q51 - Do you agree with the principle that a single form should be prescribed for applying for cremations or is it preferable that separate forms should be provided for applying for different categories of cremation? Please set out your reasons for your view.

114 There are currently 12 different forms used for cremations in Scotland, although they are not all relevant in every application. The provision of a single form would help simplify the process of applying for a cremation and would reduce the bureaucracy involved in the process.

Q52 - Do you agree that each of these categories should be provided for in cremation application forms?

115 This consultation paper covers the broad principles of improving the burial and cremation regime. More detailed consultation will be undertaken when regulations are being drafted, including the content and design of any cremation authorisation forms. The Commission has suggested the form used for authorising the cremation of stillborn babies in England and Wales under the Cremation (England and Wales) Regulations 2008 as a useful model.^[27] This will be considered when any forms are being designed.

Any deceased person who was born alive (including babies and infants)

116 The current form used to authorise cremations is Form A, prescribed by regulations made under Regulation 7 of the Cremation Act 1902, which have been amended on a number of occasions. The Commission recognised that Form A is used currently for all cremations and so was beyond its remit. Nonetheless, it felt that changes should be made to Form A. In particular, the Commission considered that Form A will continue to be relevant for the cremation of babies, but recommended a number of improvements to the form. Many of the recommendations for Form A would also be relevant for other categories of cremation.

117 The Commission suggested that these could be done as part of the changes which would be implemented as part of the Certification of Death (Scotland) Act 2011. The 2011 Act amends the 1902 Act by inserting new sections which allow Scottish Ministers to make regulations to prescribe cremation forms. It also inserts a new section into the 1965 Act which allows Scottish Ministers to make regulations about 'the certificates or other documentation required for the interment, cremation of other disposal of the body of a still-born child or deceased person'. These new sections are not yet in force.

118 The biggest challenge to making the proposed changes to Form A under the powers inserted by the 2011 Act is that neither fully covers all categories which require to be included. The changes to the 1902 Act refer to 'human remains', while the changes to the 1965 Act refer to a 'still-born child or a deceased person'. As such, neither option fully and unambiguously applies to all categories of cremation under consideration.

119 It is therefore the Scottish Government's intention to use the proposed Burial and Cremation (Scotland) Bill to give Scottish Ministers the power to prescribe cremation forms which will apply to all relevant categories of cremation.

Statement of what should happen to any ashes recovered

120 A key recommendation to improve Form A (and indeed all other cremation application forms which will require to be implemented in response to the recommendations of the Commission and other legislative changes) is to include a mandatory section requiring the applicant to specify what should happen to the ashes.

121 The Commission recommended that a revised Form A should set out four potential options for ashes:

(a) scattered or interred at/by the crematorium with the family in attendance, noting the date and time;

(b) scattered or interred at/by the crematorium without the family in attendance, noting the appointed date, up to 7 days after the cremation;

(c) collection by the applicant or the applicant's appointed representative;

(d) retention at the crematorium for up to 8 weeks, awaiting collection or further instruction by the applicant or the applicant's representative.

122 If either of options (c) or (d) is selected, the applicant must sign an additional declaration:

(e) I understand that if after 8 weeks the ashes have not been collected or no instruction given as to their disposal or further retention, the ashes will be scattered or interred at/by the crematorium.

123 The cremation will not be able to proceed if this proposed mandatory section of the revised Form A is not complete.

Q53 - Do you agree that Form A should contain these options for any ashes which are recovered?

Q54 - Do you agree that no cremation which is applied for using Form A should be able to proceed unless the applicant has specified what should happen to the ashes? Do the categories above cover all relevant options or should other options be offered?

Statement that ashes may not be recovered

124 The revised Form A should also make clear that in the case of the cremation of a very young child, it may not be possible to recover ashes. The applicant must also sign the form to acknowledge that he or she has read and understood this information. The cremation will not be able to proceed if this declaration has not been made by the applicant.

Q55 - Do you agree that Form A should state that it may not be possible to recover ashes after the cremation of a very young child?

Collection of ashes

125 The Commission recommended that the revised Form A should enable the applicant to authorise someone else to collect any ashes which are recovered, including the Funeral Director. If the Funeral Director is authorised to collect the ashes, the form should also enable the applicant to authorise the Funeral Director to return the ashes to the crematorium if the applicant does not collect them or instruct the Funeral Director as to their disposal within two years. When that two-year period has elapsed, the Funeral Director may return the ashes to the crematorium. The crematorium will be required to record this information in the cremation register.

126 Where ashes have been left with the crematorium awaiting collection or awaiting further instructions within a defined period, and that period has elapsed, the Cremation Authority may not scatter or inter the ashes unless 14 days' notice of the intention to do so has been given to the applicant.

127 This process for allowing someone else to collect any ashes that are recovered will also apply to the cremation of stillborn babies and the individual cremation of a pregnancy loss.

Q56 - Is the process for enabling a person other than the applicant to collect any ashes recovered appropriate? Are the timings proposed suitable?

Q57 - If ashes are left at the crematorium, how long should be required to elapse before the crematorium can make arrangements to dispose of the ashes?

128 Some of the Commission's recommendations for a revised Form A are also relevant for the other recommended forms. These are covered at paragraphs 136 and 137.

Stillborn children

129 There is currently no specific application form for the cremation of a stillborn baby. Cremation Authorities tend to amend Form A, a practice which the Infant Cremation Commission described as unsatisfactory. The Commission made a number of recommendations to address this, including the introduction of a separate application form for the cremation of a stillborn baby. Accordingly, the proposed Burial and Cremation (Scotland) Bill will give Scottish Ministers a power to make regulations relating to the cremation of stillborn children, including prescribing cremation application forms (although Scottish Ministers have this power through the amendments made to the Registration of Births, Deaths and Marriages (Scotland) Act 1965 by the Certification of Death (Scotland) Act 2011).

130 The Commission noted a number of key issues which require to be addressed. There is some ambiguity as to whether the current legislation concerning ashes being given to the applicant applies to the cremation of a stillborn baby, because Regulation 17 of the 1935 Regulations refers to 'the remains of a deceased person'. While the Commission was of the view that this did extend to stillborn babies, this will be put beyond doubt in the course of repealing the existing legislation to be modernised and consolidated in a new legal framework as per the recommendations of the Burial and Cremation Review Group. The definition of 'ashes' which is discussed at paragraph 31 will also make this clear.

131 Similarly, there is uncertainty about whether the current definition of 'body parts' for the purposes of cremation applies to stillborn babies. To remove this uncertainty the new legal framework will define 'body parts' so that stillborn babies are included for the purposes of cremation.

132 In line with the recommendations of the Infant Cremation Commission, the form for applying for the cremation of a stillborn baby will note that ashes may not be recovered, but will require the applicant to state what should be done with any ashes which are recovered. The options offered in Form A, as described at paragraphs 121 and 122 should be offered in this circumstance.

133 The cremation will not be able to proceed if the applicant has not specified how any ashes recovered are to be managed.

134 The applicant should have the option of the ashes being retained for a defined period pending a final decision, and of extending the period of retention if necessary. If the Funeral Director is authorised to collect the ashes, the form should also enable the applicant to authorise the Funeral Director to return the ashes to the crematorium if the applicant does not collect them or instruct the Funeral Director as to their disposal within two years. When that two-year period has elapsed, the Funeral Director must provide the applicant with 14 days' notice that they intend to return the ashes to the crematorium. If no response to this notice is received, the Funeral Director may return the ashes to the crematorium. The crematorium will be required to record this information in the cremation register. This is the same process proposed for the revised Form A.

135 The Commission recommended that the form used to authorise the cremation of stillborn babies must be completed and signed by the applicant. The applicant's signature must be witnessed by a person who is not a member of the applicant's family and who is not involved in the arrangements for the cremation.

Q58 - Do you agree that the application should be countersigned by someone who is not a member of the applicant's family and who is not involved in the arrangements for the cremation? Will this prove impractical? Should the legislation specify categories of people who may countersign cremation application forms?

Q59 - Should application for other categories of cremation require a countersignature?

Q60 - Given the similarities between the proposed forms, would a single application form applying to the cremation of people born alive and stillborn babies be appropriate, allowing for specific sections of the form to be completed depending on the kind of cremation? Would separate forms for each category be more appropriate?

Forms - general

136 In addition to its recommendations about particular categories of cremations, the Infant Cremation Commission made a number of recommendations which cover all forms, and these will be reflected in revised and new forms.

137 Certain principles will be followed in the design of each of these forms:

• All forms will be written and structured to ensure simplicity, clarity and consistency.
• Only information essential to the cremation will be sought.
• All Cremation Authorities will be required to use the correct forms provided for in legislation for each particular category of cremation as appropriate, without alteration.
• The cremation will not be able to proceed if mandatory sections of the revised Form A, or any other cremation application form, are not complete.

Q61 - What information should be considered essential for the cremation application?

Cremation Authority approval of cremation forms

138 The Commission recommended that in all cases, senior Cremation Authority staff should be responsible for scrutinising cremation authorisation forms to ensure that all legal requirements have been met, including that the applicant is entitled to make an application; that they have acknowledged that no ashes may be recovered; and that they have clearly indicated what should happen to any ashes which are recovered. If the Cremation Authority is not satisfied that these or any other legal requirements have been met, the cremation cannot proceed.

Q62 - What is the best way to enable Cremation Authorities to undertake this scrutiny? What level of seniority is appropriate for this role? Should the crematorium manager be legally responsible for this scrutiny, even if the actual scrutiny is delegated to a suitably senior member of staff? Should a senior Cremation Authority staff member be required to countersign the form to confirm that all legal requirements have been met?

Forms for burial

139 There is currently no equivalent process for arranging a burial, and there are no statutory forms (although Burial Authorities may use forms which they have developed themselves). There are no particular issues with the process of arranging a burial (notwithstanding the lack of available space), and neither the Burial and Cremation Review Group nor the Infant Cremation Commission made any recommendations about the introduction of forms for applying for a burial.

140 Nonetheless, it may be worth considering whether it would be beneficial to introduce statutory forms for applying for burial. This would provide a parallel process to that which exists for cremation, including the potential for greater scrutiny of practices. Given the proposals to introduce new inspector roles, one function of an inspector could be to inspect burial forms to ensure compliance. There are clear benefits to introducing burial forms, but doing so would also introduce additional bureaucracy, which may add to the cost of a burial and which may also increase the length of time required to arrange a burial.

Q63 - Is there any need for the introduction of statutory forms for applying for a burial?