Statutory inspection of burial authorities, cremation authorities and funeral directors

Section 2 - Frequency of Routine Inspections of Burial Authorities, Cremation Authorities and Funeral Director Businesses

61. Section 90 of the 2016 Act provides Scottish Ministers with powers to make provision about the frequency of inspections. The Scottish Government intends to use these powers and is seeking views on the approach to determining frequency of routine inspections of relevant bodies.

Previous Consultation

62. This issue has been discussed with the Inspection Regulations Working Group and was included in the 2017 consultation on proposed inspection regulations.

63. The 2017 inspection consultation asked whether cremation authorities should be inspected annually. This proposal was put forward in part because of the small number of cremation authorities in Scotland (there are currently 33 crematoriums across 22 cremation authorities). Respondents to the 2017 consultation unanimously agreed with this proposal and crematoriums in Scotland are currently inspected annually. This inspection frequency is not currently set in regulations.

64. Respondents to the 2017 consultation suggested routine inspections of burial authorities could occur either annually or every 2-3 years. Where respondents suggested annual inspections, this appeared to be on the basis that it would align with (current) annual inspection of crematoriums. However, inspection every 2-3 years was perceived by other respondents to be more feasible given the high estimated number of burial authorities and the resource commitment required, as well as being appropriate given the low risk that burial authorities present. The position subsequently supported by the Inspection Regulations Working Group was that a three yearly interval for routine inspection of burial authorities would be proportionate and take into account the relatively low number of issues raised about practices at burial authorities/grounds.

65. Regarding funeral director businesses, the 2017 consultation responses generally fell into two categories, suggesting either annual inspections or inspections every 2-3 years. However, these responses additionally noted the difficulties of inspecting funeral directors annually. In particular, the feasibility of annual inspections was questioned given the large number of funeral director businesses in Scotland, their geographical dispersal and the significant resources it would require to administer. Further, respondents noted the expected disruption annual inspection would cause to businesses. Open-ended responses to the 2017 consultation suggested that flexibility to inspect funeral directors based on any concerns about them would be advantageous.

Scottish Government Position

Burial Authorities and Cremation Authorities

66. We are proposing to provide in regulations that a risk-based approach be used to determine the frequency of routine inspections of burial authorities and cremation authorities.

67. This proposed approach is meant to provide necessary flexibility. Firstly, this allows Inspectors to be able to prioritise and target finite resources effectively for the greatest impact. In practice, this would mean Inspectors have more time to spend working with authorities where problems have been identified to improve their standards. Secondly, it allows burial or cremation authorities that consistently demonstrate good practice and compliance with set standards to benefit from reduced inspections.

68. If a set frequency were provided for in regulations, there would be a risk that a significant and/or unplanned disruption to Inspector capacity would lead to an inability of Inspectors and the funeral sector to fulfil the requirements of the regulations. The proposed risk-based and more flexible approach would allow the public to take confidence that burial or cremation authorities deemed to be higher risk will be inspected more frequently (and ad-hoc inspections can be used at any time to supplement this).

69. To implement this approach, we intend to develop a ‘risk framework’ tool to provide Inspectors with an objective method of assessing risk and determining appropriate routine inspection frequencies. We note that this tool is intended to only be for determining frequency of routine inspection. It will not be an indicator of whether enforcement action will be taken against a given relevant body, and will be entirely separate from their inspection reports. The risk framework for each of burial authorities and cremation authorities is likely to be tailored to each sector, and set out at a high level in the proposed regulations.

70. We are considering the following criteria for including in the risk frameworks for burial authorities and cremation authorities:

• number and nature of complaints against the burial authority or cremation authority
• evidence of compliance or non-compliance with statutory standards, including where standards have been exceeded
• membership of a trade body
• number and type of premises operated by that business (for example body storage and handling facility or administrative offices only)
• for burial authorities, the number of burial grounds and the nature of those burial grounds i.e. whether they are active (accepting new burials), inactive (not accepting new burials) or historic (where the last coffin burial took place more than 100 years ago and no new burials are anticipated)
• number of burials or cremations conducted annually
• referrals made by Inspectors to other bodies regarding the burial authority or cremation authority (e.g. HSE, Police Scotland) or referrals by those other bodies to the inspectors
• where accredited training exists, qualifications of owners, managers and staff

71. The proposed risk framework may need to be revised as more information is collected about burial authorities and cremation authorities, and if there are changes to the funeral sector (for example if authorities begin providing alternative methods of body disposal such as alkaline hydrolysis [see consultation]).

72. Regarding inspection frequencies that might be associated with lower or higher risk, it will be for Inspectors to decide how frequently a burial or cremation authority should be inspected, based on their assessment of risk. This allows inspectors to deploy their resources and prioritise inspections on a more risk-assessed and proportionate basis, using the latest evidence and intelligence. Broadly, with reference to the above risk framework criteria, risk would be judged by Inspectors based upon compliance history and authorities with a strong history of meeting high standards would be considered low risk.

73. However, we are considering what typical frequencies Inspectors may associate with low, medium, and high risk burial or cremation authorities. Routine inspection cycles of approximately three years for low risk bodies and annual inspections for higher risk bodies are under consideration given responses to the 2017 consultation (noted above) and the existing precedent for these frequencies in existing regulatory regimes.^[8]

74. Importantly, the 2016 Act does not allow for a licensing scheme to be developed for burial authorities and cremation authorities – this is only permitted for funeral directors (see below). Therefore, any risk-based inspection frequencies of burial authorities and cremation authorities will not be impacted by any implementation of a licensing regime in future.

Funeral Directors

75. Similarly to burial authorities and cremation authorities above, we are proposing that a risk-based approach will be used to determine the frequency of routine inspections of funeral directors. However, the proposed licensing scheme for funeral directors (see licensing consultation) will, if implemented, have an impact on funeral director inspections. More detail is provided below.

76. We consider that taking a risk-based approach to the routine inspection of funeral directors is supported by the same reasons as are noted above in the subsection on burial and cremation authorities: it is meant to provide flexibility for Inspectors to prioritise and target finite resources effectively, and ensure funeral directors at high risk are being inspected more frequently than those who are at low or medium risk.

77. Again similar to the approach for burial and cremation authorities, we intend to develop a ‘risk framework’ for funeral directors, to provide Inspectors with an objective method of assessing risk. As above, this will only be used for determining frequency of routine inspection, not enforcement action.

78. We are considering the following criteria for including in the risk framework for funeral directors:

• number and nature of complaints against a funeral director
• evidence of compliance or non-compliance with statutory standards, including where standards have been exceeded
• membership of a trade body
• number and type of premises operated by that business (for example body storage and handling facility or administrative offices only)
• type of activities carried out and the risk associated with those activities (e.g. body storage, embalming or administration only)
• number of funerals arranged and conducted annually
• referrals made by Inspectors to other bodies regarding the funeral director (e.g. HSE, Police Scotland) or referrals by those other bodies to the inspectors

79. The proposed risk framework may need to be revised as more information is collected about funeral directors and if the professional landscape changes (for example, if/when accredited professional qualifications for funeral directors become available, or if funeral directors begin providing alternative methods of body disposal such as alkaline hydrolysis [see consultation]).

80. Similar to the above subsection on burial and cremation authorities, we are considering what typical frequencies Inspectors may associate with low, medium, and high risk funeral directors. Routine inspection cycles of approximately three years for low risk funeral directors, and annual inspections for higher risk funeral directors, was supported by stakeholders on the Inspection Regulations Working Group and certain respondents from the 2017 consultation. Again, there is precedent for these frequencies in existing regulatory regimes.

81. The proposed licensing scheme for funeral directors is proposing that licences should be renewed every three years and that each renewal application should require an inspection. We consider that to inform the licensing renewal decision, a three year application cycle will allow a wide range of intelligence to be taken into account, including evidence from inspection reports, recent complaints or other information submitted by the public or interested parties, and any changes to a business’s staffing, ownership, management or general circumstances that could potentially affect the quality of service (see licensing consultation).

82. Should the licensing scheme be implemented, it is intended that the licence renewal inspections of funeral directors will be synchronised with their routine inspections, as determined by the risk-based approach. A full range of information will be used to consider how best to synchronise these inspections, so as not to overburden funeral directors with unnecessary, duplicate inspections.

83. For example, if a low-risk funeral director is being inspected as part of their licence renewal application every three years, that inspection could also serve as their three-yearly routine inspection. Additionally, if a funeral director is due for a routine inspection, but has a licence renewal coming up soon, then the proposed approach would allow Inspectors to time that funeral director’s inspection to serve as both their renewal inspection and their routine inspection.

Additional Information on Proposed Risk Based Approach

84. When the proposed inspection regime is first implemented, it is likely that all relevant bodies will be deemed to be at the same level of risk as others in their sector (e.g. all the cremation authorities would initially be deemed to be the same level of risk), until we are able to gather evidence and revise their level of risk as necessary.

85. If the risk-based approach is taken we do not intend that the risk assessment of individual bodies will be published. This is meant to be an internal tool for Inspectors to help them determine the frequency of routine inspection for individual relevant bodies with sensitivity to the latest context and evidence. It is not intended to form part of the individual body’s inspection reports or any related enforcement action.

86. It is intended that Inspectors can revise a relevant body’s risk framework, based on evidence provided to them by that body, as observed through inspections, or from an alternative source. A relevant body will be free to request a review of their risk level by Inspectors, however this would need to be accompanied by relevant evidence to support why a revision to the risk level might be warranted. Revisions which would lead to a change in routine inspection frequency (e.g. from every three years to annually) would be communicated to the body.

Question 2 - Do you agree or disagree with taking a ‘risk-based approach’ to determining the frequency of routine inspections for cremation authorities?

Strongly agree

Agree

Neither agree or disagree

Disagree

Strongly disagree

Question 3 - Please provide any suggested revisions or additions to the criteria proposed for determining the level of risk of cremation authorities.

Question 4 - Do you agree or disagree with taking a ‘risk-based approach’ to determining the frequency of routine inspections for burial authorities?

Strongly agree

Agree

Neither agree or disagree

Disagree

Strongly disagree

Question 5 - Please provide any suggested revisions or additions to the criteria proposed for determining the level of risk of burial authorities.

Question 6 - Do you agree or disagree with taking a ‘risk-based approach’ to determining the frequency of routine inspections for funeral director businesses?

Strongly agree

Agree

Neither agree or disagree

Disagree

Strongly disagree

Question 7 - Please provide any suggested revisions or additions to the criteria proposed for determining the level of risk of funeral directors.

Question 8 - Please provide any comments on the proposal to link inspections and funeral director licence renewals.

Question 9 - Please provide any other comments regarding the proposals for determining the frequency of routine inspections.