When tickety-boo = tangled web

Charles Cowling

 

This blog doesn’t go looking for trouble, but it occasionally splashes into a little local difficulty. Can’t be too careful what you say, that’s the moral. Actually, the only entity that ever threatened to sue us was Promessa. You can’t be too careful of your friends.

We got into perhaps our hottest water when surveying the way regulation of the funeral trade works in the US, back in January 2009. It concerned a law in Michigan which requires a family to engage a funeral director to supervise the handling, disposition and disinterment of a dead person. We got our information from Thomas Lynch (yes, the Thomas Lynch). He told us: “In our state of Michigan the occupational group charged with collecting and registering these vital statistics and medical certification is licensees in mortuary science … an occupational class which it licenses and regulates.” He added: “In Milford we can’t burn leaves in the autumn, bury our trash in the back yard, drive an unlicensed vehicle or tend to the duties of our toilet in public.  Nor can we hunt squirrels, coyotes, deer or dogs in town.  “We the people” have made our laws, on these and a million other matters.  Including the dead.”

While this was going on, Lynch was busy suing Josh Slocum  of the FCA  and Lisa Carlson of the FEO, for libel. Both had vigorously attacked his defence of this law. When Lynch’s suit was thrown out we asked him to comment. He did so, on this blog, and was immediately counter-sued for costs by Slocum and Carlson on the strength of what he had said. It was embarrassing to be caught in the crossfire of people we admire greatly. Rupert Callender still writhes at the memory.

And so it came to pass that the GFG became Exhibit A in Case No. 08-CV-13949 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION: “The primary bases for Defendants’ motions for attorneys fees are certain statements Lynch purportedly made in the weeks following the disposition of the case. In Charles Cowling’s blog entitled “The Good Funeral Guide,” Mr. Cowling made a post on August 17, 2009 captioned “That Tom Lynch libel case.”  (See Def. FEO’s Mot. Br., at Ex. B.)  In the comments following the post, Mr. Cowling stated that he received the following in an email from Thomas Lynch…”

You can read the email here.

It was a learning curve that left a nasty taste in the mouth. It probably converted all who followed it into militant non-regulators. Regulation is only attractive to people who are ignorant of unintended consequences.

Over in the US there’s an interesting case developing right now. Rabbi Daniel Wasserman is suing the Pennsylvania board of funeral directors because it insists on supervising his funerals. In the words of his lawsuit, Wasserman “is now being threatened with civil action and criminal prosecution … for conducting religious funerals in place of licensed funeral directors who, under color of state law, interfere in purely religious observances for no other justification than personal profit.”

Wasserman’s case is that, under Jewish law, the care of the dead cannot be delegated – and rabbis cannot become licensed funeral directors because embalming is anathema to Jews.

There are no public health issues, no dangers to wider society. The Department of Health agrees that Jewish custom abides by all health laws.

Regulation and licensing are clearly desirable in areas where public safety is concerned. It’s why you have to employ a Gas Safe registered person to work on your boiler so that you do not blow up your neighbours.

Anyone in the UK who favours licensing funeral directors must answer this question: Should the law compel you to engage a contractor to do what you can perfectly safely and competently do for yourself?

It really is that simple.

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12 Comments on "When tickety-boo = tangled web"

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Ethan
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Now that this Law Commission project on a Modern Framework for Human Corpse Disposal is possibly on its way, it would be really good to understand the pros and cons of regulation of corpse “processing and disposal”. As a member of the public, it’s really hard to grasp what it could mean at both a micro and macro level. A guide for beginners would be really enlightening plus some balanced discussion amongst people who understand it all well. Please!

Davey Peters
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Sorry Nick, I missed the whole response completely. The last comment I posted was started before your previous comment and finished between bouts of the Olympics and Family Guy. :), I wholeheartedly agree with your open approach and the reasoning behind it. Over the past 6 weeks I have visited several funeral homes and was welcomed to both the public areas and also behind the scenes. Two of these were at the GFG’s dreaded Co-op, (In different areas I must add) I was very pleased with what I saw, the way I was treated and the wealth of information I… Read more »
Nick Gandon
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Davey, I think you miss my point – perhaps I did not make it very well. What I’m trying to say is, there should be no part of the “behind scenes” that is so “unacceptable” that it would perhaps “shock” any reasonable member of the general public. Could you allow a member of the public into a open racked coldroom? Absolutely not – but access to a conventional “doored” fridge storage facility would surely be acceptable. There would have been no “shock” factor on the recent TV programme had this simple rule been followed. There is a point of unacceptability… Read more »
Davey Peters
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Who would want to look?? I can’t see the majority of the population wanting to visit a mortuary at any time, let alone when they have lost someone close to them. There needs to be something in place to make sure every single registered business is providing adequate facilities to store and care for the dead. I agree that different people require different levels of service, this is the case in any walk of life. The majority of the time this is dependent on the available finances of those concerned. Some people like to dine at swanky restaurants, for some… Read more »
Nick Gandon
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Charles, you said: “Good FDs are soon going to be desperate to differentiate themselves from the mediocre and the downright awful”. I am in the process of adding the following message to all our websites: ———————————————– “Simplicity Cremations were the first UK undertakers to offer a dedicated Direct Cremation service. We pride ourselves on our quality of care, our friendly professional ethos, and our modern facilities. Our format for this choice of service was devised in 1991, and has since, arguably, become the UK’s industry standard. Over the past few months, there has been a concerning influx of internet sites,… Read more »
Davey Peters
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I agree with quite a bit of what you have said Charles, the funeral director is essentially an event organiser, but also they provide a care facility. Rogue traders will out in the end as word of mouth spreads, this kind of person surely could not last on a local level within the profession, whether it be a whole business or an individual employed by someone. I used to work in a small restaurant when I was still in school and the manager would constantly reiterate the need for a high quality all round service by saying, ” if someone… Read more »
Nick Gandon
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I’ve had some limited experience of consultation with government departments – with a view to regulation change / accreditation – not in the funeral field though….. The first requirement seems to be that someone with absolutely no knowledge of the topic is put in charge of the consultation. A pool of academics is then hired, at no small cost, to act as professional advisers. There are several meetings over the period of around three or four years, to which some (but not all) parties are invited. Sandwiches and refreshments are provided. A code of practice or draft regulation is drawn… Read more »
David Holmes
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Regulation and licensing would mostly suit the major players and put off new entrants. Prices would rise (faster than they already do)

Generally FD’s do a an excellent, good or reasonable job. Those that do not deserve to be admonished. It is a great pity that the trade associations do not enforce their own rules and use existing disciplinary measures – but I suppose that’s what happens when any industry or body (!) regulates itself.

Davey Peters
Guest
Interesting stuff, is it really that simple though? Charles, as you know, I am very much in favour of licensing funeral directors, mainly for continuity in levels of care the deceased receive. The Law does not and should not compel you to use a Funeral Director if you can care for someone yourself. This would undoubtedly cause prices to rocket beyond belief. However , surely any registered business has a duty to act within an appropriate manner and this quite clearly isn’t the case for some at this time. Licensing registered business’s on the grounds of good conduct and suitable… Read more »