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

The right to instruct the disposal of human remains

Overview

35 There is currently no legal provision regarding who has the right to instruct the disposal of human remains in Scotland, which normally involves arranging for the disposal of the body, including the method of disposal. In practice, this is commonly carried out by the nearest relative or next-of-kin of the deceased, although it may also be performed by the executor. This lack of legal clarity can cause problems. In particular, the potential use of the executor may be problematic: as the Burial and Cremation Review Group noted, there is no confirmed executor in around 60% of deaths in Scotland, and the executor may not be confirmed until after the funeral. Moreover, the executor's functions are primarily administrative and financial and do not extend to arranging the funeral.

36 The Burial and Cremation Review Group considered the issue and recommended that the right to instruct the disposal of a body should be vested in the nearest relative. Given the wider focus of this consultation, the issue being considered here is who should have the right to instruct the disposal of human remains - this will allow the issue to be considered in the context of stillborn babies and pregnancy loss. The Group's recommendation remains valid for this wider context.

37 The Infant Cremation Commission made recommendations designed to provide a robust framework for who is entitled to apply for the cremation of stillborn babies and pregnancy loss. The Commission recommended that in the case of stillborn babies and the individual cremation of pregnancy loss the person who is entitled to apply for cremation is the nearest relative as defined by Section 50 of the Human Tissue (Scotland) Act 2006. In the case of the shared cremation of pregnancy loss, the person entitled to apply for cremation is a person authorised by the Medical Director of a Health Board or other medical provider. This is discussed in more detail below.

Death of an adult

38 The Group recommended that the definition of 'nearest relative' should be the same as in Section 50 of the Human Tissue (Scotland) Act 2006:

'the nearest relative is the person who immediately before the adult's death was -

(a) the adult's spouse or civil partner;

(b) living with the adult as husband or wife or in a relationship which had the characteristics of the relationship between civil partners and had been so living for a period of not less than 6 months (or if the adult was in hospital immediately before death had been so living for such a period when the adult was admitted to hospital);

(c) the adult's child;

(d) the adult's parent;

(e) the adult's brother or sister;

(f) the adult's grandparents;

(g) the adult's grandchild;

(h) the adult's uncle or aunt;

(i) the adult's cousin;

(j) the adult's niece or nephew;

(k) a friend of longstanding of the adult'

39 This follows common practice in Scotland, which includes the next of kin or surviving spouse having rights to solatium (ie, damages for pain and suffering) for unauthorised interference with the dead body, and would avoid the potential problems caused by using the executor.

40 Where there was a dispute over who should have the right to instruct the disposal of a body, the Group recommended that this would be resolved by making a summary application to a sheriff.

Q13 - Do you agree that the right to instruct the disposal of a body on death in the case of an adult should be vested in the nearest relative using the definition at Section 50 of the Human Tissue (Scotland) Act 2006? If not, why not? In whom should this power be vested instead?

Death of a child

41 The Infant Cremation Commission also recommended using this definition in particular circumstances, and cited the Burial and Cremation Review Group's recommendation. This definition should be unambiguously applicable in the case of the death of an adult, but is more problematic where a child (including a baby) has died, and also in the case of stillbirths and pregnancy loss. Nonetheless, alternative proposals for instructing the disposal of the body when a child dies, which reflect the spirit of the original recommendation and follow the same general approach as Section 50, should provide appropriate outcomes. Proposals for who should have the right to instruct the disposal of a pregnancy loss are considered at paragraphs 154-155.

42 In the case of the death of a child, the 2006 Act offers a useful alternative definition. Section 10 relates to a child who dies under 12 years of age, and allows decisions to be made by 'a person who immediately before the death of a child under 12 years of age had parental rights and parental responsibilities in relation to the child (but who is not a local authority)'. The 2006 Act makes a distinction between children over and under 12 years of age because children over 12 years of age can make decisions about the donation of their organs in the event of their death. This distinction does not need to apply for the circumstances of instructing the disposal of a body. Similarly the restriction relating to a local authority is not relevant in the case of the disposal of a body.

43 For the purposes of the Burial and Cremation (Scotland) Bill it is proposed that the person who has the right to instruct the disposal of the body where a child has died should be a person who immediately before the death of the child had parental rights and parental responsibilities in relation to the child. It is proposed that this should apply in the death of any person below the age of 16 years, which would allow the definition at Section 50 of the 2006 Act to be used for any person aged 16 years or over. Where the person who had parental rights and parental responsibilities in relation to the child cannot make such a decision, the Bill should offer a range of other people in whom this power should be vested. This would be based on Section 50 and would represent a range of familial connections.

Q14 - In the case of the death of a person under the age of 16 years, do you agree that the right to instruct the disposal of the body should follow the proposal at paragraph 43? If not, why not? In whom should this power be vested instead? How should this be defined in legislation?

Stillborn babies

44 A further definition is required for the purposes of stillborn babies. There are no directly comparable definitions in other legislation that can act as a model, but it is still possible to offer alternatives which capture the spirit of the recommendations. The nearest equivalent is in the language used by the Registration of Births, Deaths and Marriages (Scotland) Act 1965 for registering a stillbirth, in which 'mother' and 'father' are used.^[17]

45 It is proposed that in the case of a stillbirth the right to instruct the disposal of the body should be vested in the 'mother' or 'father'. Where for any reason it is not possible for the mother or father to do this, a list of alternative people who have familial links to the mother and father should be used for the purposes of instructing the disposal of the body; this could be based on Section 50 of the 2006 Act.

Q15 - Do you agree with the proposal for who should have the right to instruct the disposal of the body in the event of a stillbirth? If not, why not? Who should have the right to instruct the disposal of the body in the event that the mother or father are unable to do so? How should this right be defined in legislation?

Additional requirements in the case of a stillborn baby, pregnancy loss and the death of a child

46 The Infant Cremation Commission recommended that in cases relating to babies and stillbirths an application by a person other than those described at paragraphs 43 and 45 should be accepted only on cause shown (ie, where a valid reason can be demonstrated). Given the additional definitions proposed, it is suggested that this same requirement is also applied to the deaths of people under the age of 16 years. The use of the definition of 'nearest relative' at Section 50 of the 2006 Act for the death of people aged 16 years and over provides sufficient flexibility so that similar provisions are not required for instructing the disposal of the body in the death of an adult.

47 This approach provides a specified list of who may instruct the disposal of human remains, but allows for alternative arrangements where necessary. Where such an application is accepted, the reason should be recorded in the Cremation Register (which is discussed in more detail at paragraphs 168-175).

Q16 - Do you agree with the proposal of allowing someone not listed to instruct the disposal of human remains in the case of a stillborn baby, pregnancy loss and the death of a child only on cause shown? Is it appropriate that no similar provision is proposed for the death of an adult?