Funeral Director Code of Practice: business and regulatory impact assessment

3 Options

Option 1 – Do nothing

An option of ‘doing nothing’ or ‘no action’ was not feasible or appropriate in this instance given the requirements of the 2016 Act, the obligations on Ministers to implement and bring into force the provisions of the Act, and section 97 of the 2016 Act which requires funeral directors to comply with the requirements of a Code of Practice.

We also considered whether there should be exemptions or flexibilities for smaller funeral director businesses. However, we concluded it would be inappropriate and contradictory to our objectives to require lesser standards from small funeral director businesses, because all members of the public seeking their services should be able to expect the same dignified treatment of their deceased loved ones.

Option 2 – Statutory Funeral Director: Code of Practice

The issuing of a statutory Code aligns with the requirements set out in the 2016 Act. This approach proceeds on the expectation that if funeral directors comply with the rules set out in the Code, the regulatory objectives of achieving minimum standards in the funeral sector (and thus contributing to better protection of the bereaved, dignity of the deceased, and public confidence in the sector) will be achieved in a way which is clear and consistent. The requirements which will be set out in the Code align with what was discussed and agreed with the industry Short Life Working Group.

Option 2 - Costs:

• Moderate costs to funeral director businesses that do not yet comply with the requirements which will be set out in the Code
• Where specific requirements are set out as ‘rules’ with which businesses must comply, this may disincentivise innovation, as businesses are less able to experiment with methods or means to satisfy a regulatory goal.^[7] This may further lead to a ‘tick-box’ mindset amongst businesses, and may incentivise businesses to seek loopholes to compliance.^[8]

Option 2 – Benefits:

• A statutory Code ensures compliance with best practice for care of the deceased in the sector, and thus achieve the aims of the Code, including contributing to enhanced public confidence about the sector
• Providing prescriptive requirements to be followed provides transparency and certainty to funeral director businesses. It ensures they know how their compliance with the Code will be objectively and consistently assessed by inspectors. Any non-compliance found can be clearly identified against the prescriptive rules set out in the Code, and the measures needed to attain compliance will be clear for a funeral director. This could increase the sector’s confidence in the inspection regime and contribute to greater buy-in and compliance from the sector.
• In future, a statutory Code with clear requirements means Inspectors will have clear rules against which to inspect funeral directors, allowing them to retain objectivity and be confident in their assessments of compliance/non-compliance.^[9] Further, any non-compliance will have clear remedies required, allowing (once intended inspection regulations are implemented) inspectors to make clear, evidenced, and objective recommendations for improvement and enforcement if required.

Recommendation:

Option 2 is recommended.

Under this option, the inclusion of clear, prescriptive requirements allows funeral directors to know in advance what conduct is required in their businesses, and to have clear understanding of what behaviours, processes, or procedures they will need to have to be compliant. Inspectors can operate with clarity and consistency against the proportionate and evidence-based requirements of the Code. The public can have confidence that the statutory Code must be complied with and that their loved ones are receiving care that is both dignified and safe.

The approach described in Option 2 will be proportionate and measured. In the development of the Code, where a statutory requirement has been considered to possibly go too far in specifying detail, this has been revised. Please see section 4.1.1 below regarding refrigeration for an example.