Regulatory model including Progressive Licensing scheme for Funeral Directors: report to Scottish Ministers

Delivering quality standards

Code of Practice

8. The existing programme of activity in the past 18 months encompasses development work and collaboration with the sector to define and calibrate a set of accepted, proportionate and applicable standards for operational practice for the work of Funeral Directors in delivering good quality funeral services. This is articulated in a refined working draft of the statutory Code of Practice for Funeral Directors as allowed for in section 97 of the primary legislation. 

9. Contributions and position papers from a wide range of key stakeholders have helped inform and shape the Code of Practice. This includes the two main trade organisations the National Association of Funeral Directors (NAFD) and The National Society of Allied and Independent Funeral Directors (SAIF), and both independent and corporate representation. These contributions have aimed to ensure that the Code of Practice represents modern and good practice expectations for service in Scotland, befitting of the needs and expectations of customers and the communities they serve. A draft of the statutory Code will be subject to formal governmental consultation in the coming months, with the overall aim to produce a Code which is understood and readily applied by businesses in Scotland, thus delivering public reassurance of good standards of service, a fair and equitable trading environment and a platform for further consumer understanding of quality and service outcomes. 

Inspection Regulations

10. Sections 90-92 of the 2016 Act also set out provision for a regulatory framework through inspection and enforcement to be developed. This approach is a principal and underpinning tenet of many other regulatory regimes such as Health and Safety legislation, environmental compliance regulations and is one which is already familiar to those operating Funeral Director businesses in Scotland. Work is currently underway to collectively consider and determine the intended outcomes, what an appropriate interface should look like, how these functions would be discharged by an inspector or inspectors, frequency and nature of inspections, consequences and sanctions in both a public and non-public way. 

11. In addition, and entirely legitimately, considerations of the need for transparency of decision making, consistency of approach and implementation, appeals and due process through suitable governance have been raised by representatives of the sector to ensure a proportionate and fair application of any inspection programme. It is anticipated that this work will continue into early 2019 through the Scottish Government Inspection Regulation Working Group, and will result in a defined process and governance arrangement such that the regulations made by Parliament will benefit from cross stakeholder buy in and ownership. 

12. It is expected that these two key areas of delivery – the Code of Practice and Inspection Regulations – will provide an operating environment in Scotland where a defined set of quality standards will be applied and embedded with appropriate determination of compliance. As a result consumer confidence in those areas of service which are less accessible to them by nature of the work being provided, and emotional impacts of the customer interaction with the business, should be improved. There is a recognition amongst many of the key stakeholders and leaders within Scotland that these elements are appropriate in modern times, with the need to ensure intended outcomes are achieved, but that the increasingly understood expectation from the public being such that many believe that these checks and balances are already in place. 

Trade associations and wider business

13. It is also important to recognise the existing and on-going work from within parts of the sector to provide a basis of reassurance to the public, making use of well-defined and implemented internal compliance vehicles such as internal audits and trade body membership requirements and inspections. The work to develop independent channels of regulatory interaction by formal regulation, should therefore recognise and value these elements. In order to design an efficient and effective model each system should recognise the intended outcomes, limitations and benefits of the other. It is interesting to note and should be acknowledged that dialogue to this effect has been initiated with exploration of complaint management processes, delivery of inspection programmes and data sharing between trade bodies, the Government and the Inspector under active consideration. In addition, the focus and emphasis of the work of the trade organisations is being examined, such that in the future it could provide members with preparatory input in advance of an independent government inspection.

14. That being said, it is also recognised that the work of the sector is also represented by businesses who provide services to the bereaved who are not members of any recognised trade organisation, or who have engaged in any formal capacity with the government or Inspector.  Whilst the work outlined in the Inspector of Funeral Directors Annual Report – published August 2018, sets out initial activity to better understand the profile of business activity in Scotland, this does not represent a definitive understanding of which businesses provide services to the bereaved.

15. Limitations of the current formal evidence base are clear at a time when there is a need to understand the activities, locations and business relationships which exist and there is lack of evidential clarity as to the level of competence and experience of the leaders, individuals and teams who provide support and care. That being said, it is not the view of the Inspector that this is a sector which is wholly or substantially non-compliant, findings from inspections and engagement activity demonstrates good and improving practice in many areas, along with some areas for improvement being identified. However, there is a clear requirement for an improved, legislatively based and dynamic understanding of the business and activity profile in Scotland. This will allow for an effective regulatory framework to be developed which enables an appropriately defined threshold for quality standards, a resource intelligent and risk based inspection and enforcement interface, and a public reassurance mechanism for matters of significant concern to be raised and addressed by improved practice.

16. The inspection and enforcement of a Code of Practice provisions set out in the Act allow for elements of these necessary outcomes to be delivered, but do not allow for a business to notify the Inspector or government as to their business activity or operational location. In order for accountability and calibration of standards through inspection and enforcement, a provision requiring, as a minimum, formal notification of business trading and operational activity is required. The full implementation of all provisions within the Burial and Cremation (Scotland) Act 2016, will allow for this notification process to be commenced.