Funeral Director Code of Practice: business and regulatory impact assessment

2 Consultation

2.1 Within Government

The Burial and Cremation Team had direct contact and discussion with the following divisions, teams, and agencies during the development and revision of the Code.

• Inspectors of Burial, Cremation and Funeral Directors
• Scottish Government Early Years and Funeral Support Policy Team
• Scottish Government Better Regulation Team
• UK Internal Market Team

Additionally, professional expertise was sought from the HM Inspector of Anatomy, Professor Gordon Findlater, and Ishbel Gall, Mortuary Manager at NHS Grampian, who were consulted regarding the requirement within the draft Code for funeral directors to regularly check on the deceased in their care. Dr Padmini Mishra, Senior Medical Officer, was consulted regarding wording about verification of death.

Since revising the Code, the Team have also had discussions with officials in Business Support Transformation, Directorate for Economic Development. This was to discuss how funeral sector regulation will align with the Scottish Government’s work on impacts of regulation on businesses under the New Deal for Business.

2.2 Public Consultation

2.2.1 Public Consultation on Draft Code

The Scottish Government undertook an online consultation on its proposed Code between June and September 2019. The consultation was comprised of 18 questions, and collected information in both survey and open-ended comment format. The initial analysis of responses was conducted in late 2019, however the onset of the Covid-19 pandemic resulted in a delay to publishing the analysis report until 2021, and a delay in finalising the draft Code until 2023.

The consultation focused on the sections of the draft Code that would potentially have the greatest impact on funeral directors (assessed from understanding of the sector and stakeholder discussions during the development of the Code).

The consultation received 86 responses (52 from organisations and 34 from individuals). Respondents generally supported the Code and its intentions. A majority of respondents who were funeral directors expressed that they were mostly or fully compliant with the Code in its draft form.

Key points also included that most respondents indicated they were supportive of funeral directors providing viewing of the deceased as a service, and did not think that offering viewing would have an impact on a funeral director’s business. Some respondents stated this requirements was already standard practice. The majority of respondents noted the Code would not be a barrier to funeral businesses’ plans for expansion, or innovation in the industry.

Respondents appeared divided, however about whether the standards set out in the Code will raise barriers for people considering entering work in the funeral director industry for the first time. Most open-ended comments seemed to support the introduction of standards set out in the Code, regardless of potential barriers. Many expressed that these would be beneficial to the industry, increasing the overall competency of all Scotland’s funeral directors and building public trust. To illustrate:

“If your stated purpose is to "ensure good standards" there must be some minimum standards. The current situation where anyone with a vehicle and a spare room, no facilities, no training or knowledge or accountability can set up as a funeral director overnight cannot be right. This is overdue in an industry where operators can operate outside any code of practice." (Individual funeral director respondent)

Of those who expressed that the Code would be a negative barrier to new entries, these focused on the possible barrier that educational qualifications may present (NB the current Code has no such requirements), and the increased financial implications of starting a new business after the Code is introduced. These include issues discussed elsewhere in this BRIA, such as refrigeration.

The consultation also provided valuable feedback on, and critiques of, the Code by respondents. For example, respondents noted that significant investment by funeral directors might be required to meet the Code’s requirements. Estimates of potential costs are provided in this BRIA.

Feedback also included that the Code may impact small- and medium-sized enterprises (SMEs) in unique ways. In response, the Scottish Government undertook specific consultation activities to obtain views from SMEs and other funeral director businesses. These are described in section 2.3 below.

Further detail on these results can be found in the consultation analysis report which is available on the Scottish Government website.

Following the consultation exercises, the draft Code was revised, discussed again with industry stakeholders, and published on the Scottish Government website. The results of the public consultation and further internal consultation led to the following amendments:

Table 1: Amendments to the Funeral Director: Code of Practice following consultation

Terminology - Revisions to descriptions or terminology in order to provide greater detail and clarity, for example regarding ‘client’ (paragraph 14), verification of death by registered healthcare professional (paragraph 15), record-keeping (paragraph 20), ‘first offices’ (paragraphs 32 and 34), and ‘emergency invasive procedures’ (paragraph 42)

Visual checks - Mandate for ‘regular’ visual checks of the condition of the deceased (see paragraph 28), an amendment from requiring checks at least once every 24 hours

Refrigeration - Amended wording requiring refrigeration that is “sufficient to accommodate persons received into the funeral director’s care” (see paragraph 50), an amendment from requiring a set ratio of one space for every 50 deceased persons received in the funeral director’s care per year. Amended wording to clarify that each deceased person must be stored individually on a separate rack, shelf or drawer within the storage unit (see paragraph 51).

Viewing of the deceased - Amended wording to require the funeral director to provide clear information to the client about whether they provide viewing of the deceased as standard (see paragraph 53), an amendment from mandating that the funeral director must offer, or facilitate, viewing of the deceased. Amendment to wording to clarify identity of deceased is checked ‘to ensure that the correct deceased person is shown to the visitor’ (see paragraph 56)

Complaints - Amendment to wording to clarify that a funeral director’s complaints procedure must be available on their website, where this exists, or must be made available as soon as reasonably practicable, on request (see paragraph 73) Amendment to wording to clarify that a funeral director’s complaints procedure must be available on their website, where this exists, or must be made available as soon as reasonably practicable, on request (see paragraph 73)

Transparency and Pricing - Amendments to paragraphs setting out requirements related to transparency of pricing, to refer to the CMA Funeral Markets Investigation Order 2021, and to highlight additional best practices related to estimates and final bills

2.3 Business

2.3.1 Short Life Working Group on Care of the Deceased

The Short Life Working Group on Care of the Deceased (SLWG) included representatives of the National Association of Funeral Directors (NAFD), Society of Allied and Independent Funeral Directors (SAIF), the British Institute of Embalmers, the British Institute of Funeral Directors, and other key stakeholders. Outputs from the group informed the development of the draft Funeral Director Code.

The annual report of the Inspector of Funeral Directors, published in August 2018, details the work of the SLWG in developing the draft Funeral Director Code. In particular, the Group concluded work on an initial mapping exercise of the journey of care for the deceased.

Four full day workshops were facilitated in early 2018. The final meeting in May 2018 reviewed the draft Funeral Director Code. The Inspector reports:

“As a result of these sessions, a draft Code of Practice for Funeral Directors has been circulated to the group members, and detailed explorations of key elements have been facilitated…. Legitimately, members are keen to ensure that this Code will reflect contemporary practice, and sets the standard for ‘what good looks like’ on a consistent and fair basis...”

“On implementing this aspect of the legislation, alongside upcoming Inspection Regulations, it is expected that bereaved families will have comfort that good and consistent standards of care are being provided for their loved ones, irrespective of their choice of provider or the cost of the chosen funeral.” (page 12)

The Short Life Working Group was again consulted in April 2022 following the public consultation on the Code and resultant revisions to Code. Any revisions to the original draft Code were highlighted to the Group, and responses were sought.

2.3.2 Funeral Director Businesses – Public Consultation on draft Code

As noted above, the public consultation received 86 responses; 52 (60%) were received from organisations and 34 (40%) from individuals. Among these, numerous respondents reported representing or being involved in funeral director businesses, including:

• 4 funeral industry trade bodies
• 31 funeral director organisations
• 8 individuals indicating they were, or had experience as, a funeral director.

A significant number of comments made by respondents to the public consultation indicated that SMEs or rural funeral directors could be disproportionally negatively affected by the Code. These focused on how SMEs may find it challenging to implement the requirements of the Code, such as if they plan to establish their own care facilities or mortuaries. We note that the Code allows for businesses to either obtain their own refrigeration for storage of the deceased or gain access to refrigeration facilities through a Service Level Agreement (SLA) with another organisation (see section 2.3.3. below for further detail regarding SMEs, and section 4.1 for more detail on refrigeration).

Further, there was concern from a small minority of respondents the Code did not sufficiently account for non-traditional approaches to funeral services. For example, one comment suggested the Code might reinforce the traditional funeral approach in Scotland’s funeral industry. We note, however, another response which stated the Code would not have any negative impact on recent changes being made in the funeral industry away from the traditional funeral to more personalised tributes to loved ones.

In response, the Scottish Government sought views from small, independent, and rural funeral directors. This was to investigate the potential impact the Code may have on these businesses, as reported by consultation respondents, and the relatively few responses received to the consultation from small or rural funeral directors. These views were sought through (a) three focus groups moderated by officials (with a total of nine participants), and (b) three direct conversations via phone call between officials and islands-based funeral directors. These are detailed below.

2.3.3 Funeral Director Businesses – Focus Groups

Three focus groups were held in early 2021 with funeral directors who identified as running small, rural, independent, or non-traditional businesses. In total, nine funeral directors and one person identifying as a humanist celebrant participated in the focus groups. Discussions focused on similar questions and topics as had been included in the public consultation. These included, for example, the potential impact of the requirements to have access to refrigeration for storing the deceased and offer viewing, and whether the Code might raise barriers to people entering the funeral sector or their plans for expansion or innovation.

Regarding the requirement to have a fit-for-purpose care facility or refrigeration storage space, focus group participants notes that having proper facilities to care for the deceased was important, and that businesses should have all the facilities and equipment to do the work of a funeral director. However, it was noted that some smaller businesses may not currently have much storage capacity and would need to invest in bigger facilities (or enter into SLAs). Issues with older or smaller buildings being able to accommodate refrigeration were raised, however participants reiterated that refrigeration was a necessity.

Participants also noted that a ratio of 1 storage slot per 50 deceased in their care each year should be a minimum, and the fluctuation of timing when deceased persons are received means a strict ratio isn’t always appropriate. The option to engage in an SLA was welcome (particularly for rural businesses), however participants emphasised that a business having its own refrigeration should be the priority (particularly given the cost to families of funerals and the trust families put in funeral director businesses to care for the deceased). Additional points included that there should not be an overreliance by funeral directors on NHS hospital mortuaries.

Regarding the requirement to regularly check on the condition of the deceased in their care, participants noted that this happens regularly, and that a requirement of this nature was not unreasonable. However, they noted that a strict 24-hour timescale for this may not be practical, for example over weekends if staff are not on the premises, and in these situations leeway may be needed.

Participants did not indicate that the Code would create unreasonable barriers to entry into the industry – there was strong support for ensuring that new businesses were adequately equipped to care for the deceased and that minimum standards were required for this. They also did not believe the Code would impact on businesses’ plans for expansion or possible innovations.

When the focus groups were conducted in 2021, a timeline of 18 months for implementation of the Code was deemed appropriate by participants (although a small number of participants thought this was too long).

2.3.4 Funeral Director Businesses – Phone Calls

Three phone calls were held with island-based funeral directors to seek their additional and specific views on the draft Code. Only one person raised an issue related to the geography of the islands, and this was about how quickly they can refrigerate the deceased when they go to collect them. However, no significant impacts to island communities, compared with other rural areas of Scotland or small businesses on the mainland, were anticipated from the implementation of the Code. One island-based funeral director provided responses to the set of questions over email in a Word document. The conversations were guided by the questions in the public consultation. The funeral directors were located in Shetland, Orkney, Lewis and Skye.

Officials also contacted a number of trade associations and large businesses to obtain information about the availability of refrigeration or cold room storage for storing the deceased. Findings from this engagement are reported in section 4.1 on refrigeration.