Legal rights

Free until the point of death

23 September 2014
Charles
16 Comments
Categories: funeral directors, Legal rights

Stockmort

 

Click the letter and you’ll make it bigger and readable.

It’s from Angie Gunn, Mortuary Services Admin Co-ordinator at Stockport NHS Trust. It’s been sent to all local undertakers.

“From 1 Oct, once all paperwork regarding the release of a body has been received, you will be contacted by a member of the Mortuary staff to inform you that everything is ready and that you may collect. You will be required to collect by 1630 hours the next working day … Any delay in collection will now incur a charge of £25 per day … no exceptions … should this date be a Friday and you do not collect by 16.30 hours … you will be charged for Saturday and Sunday … Families who wish to view their loved one following receipt of all relevant release paperwork will be informed that they can no longer come to the mortuary and that they must contact their funeral director to facilitate this.”

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Funeral wishes are no more than wishful thinking

29 January 2014
Charles
8 Comments
Categories: funeral plans, Legal rights

 ‘You can decide everything in advance if you wish, down to the kind of music you’d like – and there’s no charge for changing or updating your wishes at a later stage.’ Golden Charter

‘…pre-planning your funeral is actually a thoughtful and responsible way to show that you care your family … your family are spared the emotional and financial burden of organising your funeral, with all the decisions and problems this can entail, at a time when they least cope.’ Golden Leaves

‘With a Liberty funeral plan you can … choose your own funeral arrangements for your own peace of mind.’ FPS

‘Where do you want your funeral to be held? Do you want readings and, if so, which ones and read by whom? Perhaps there’s even a particular route you would like your hearse to take. By taking the initiative and setting out what you want now, you can get on with living your life, knowing that when the time comes your loved ones will know what you wanted and be spared from having to make difficult decisions.’ ‘…by capturing your funeral wishes in writing you’ll know that your requests will be honoured.’ Dying Matters in association with the National Association of Funeral Directors

‘Nottinghamshire residents could soon be able to design and record their own funeral ceremony with the help of the County Council. The proposed service will allow individuals to work with registrars to make their own choices about their funeral ceremony and take away difficult decisions family members would otherwise have to make at a time when they are coping with a bereavement. The ceremony plan will be stored at the County Archive and accessible to the next of kin or the person arranging the funeral after their death. Mansfield and Ashfield Chad’

What they don’t tell you, even in the small print (we’ve checked) is this: you can design your funeral, record your wishes, choose your music and your readings, select a route for the hearse and issue myriad such instructions to be acted on post mortem, but nothing you say or write or sign, however insistently, changes this one overriding fact: none of it is legally binding on the person with the responsibility to dispose of your body – or as all manner of information sources euphemistically and wholly inaccurately express it, “arrange your funeral”, an entirely separate and optional event).

You have no legal right to prescribe the manner of disposal of your dead body, nor can you prescribe the palaver that is to accompany that disposal (the funeral in other words).

You can issue legally binding instructions regarding the disposal of your property – this is the purpose of a will. But you cannot issue instructions regarding the disposal of your corpse because in law there is no property in a dead body, end of.

Sure, most ‘families’ will be grateful to learn that Mum wanted to be cremated and asked for the hearse to pause outside the village hall on the way to the crem. Most will want to do what the dead person wanted. But not all will want to.

Memo to anyone out there who sells funeral plans or encourages people to record their funeral wishes: tell them all the facts. They need to know. 

Groundhog week

23 January 2014
Charles
15 Comments
Categories: Legal rights

22 Jan is reckoned the worst, most depressing day of the year. This week is as bad as it gets. Nodding in agreement? Reasons to be cheerless, according to Dr Cliff Arnall of Cardiff university are: weather, debt, time since Christmas, time since failing new year’s resolutions, low motivational levels and the feeling of a need to take action.

Here at the GFG-Batesville Shard we max out on Nordic gloom in January. We use the gloom to inform realistic appraisal. We’ve been brooding about not going forwards, just round and round in circles, blogging about the same old same old time and time again, not getting anywhere or being useful. Is it time to do a Hayley and call it a day? It may be. It was fun while it lasted. How liberating to be free of it.

Out this week: the annual CDAS report on the cost of funerals. Various radio stations rang. I looked for a new angle but found there none. I did the same interviews I’ve done time and time over. Same old same old.

And then there was the Hayley thing on Corrie. I didn’t follow the build-up to the suicide so I can’t judge its usefulness in making people aware of the issues and stimulating debate. But I did watch last night’s episode where Hayley’s body was taken away by the men in black macs. It was probably the most depressing thing to happen in this week in January ever. The researchers hadn’t done their job. The doctor’s paperwork was wrong. Roy didn’t want to let Hayley go. We weren’t told that he had a choice, that he had a legal right to care for her body at home. We weren’t made aware that there are undertakers who would have helped him do that. The ‘private ambulance’ (possibly the vilest euphemism in the English language) was summoned because “it’s what ‘appens.” Reduced to helpless bystander, Roy stood aside as the wordless corpse-collectors (well cast) carried off the love of his life. He wasn’t even invited to help. It was possibly the worst home removal in the history of undertaking.

Here was an opportunity to empower viewers. All it did was reinforce the dependency culture together with every negative feeling anyone has ever entertained concerning the dismal trade. The funeral will be led by a humanist. Let’s hope something good will come of that.

Happy January, everybody.

PS This is the GFG document about legal rights, downloadable from the website. If you spot any errors or omissions, do please let us know. Your legal rights and responsibilities.

Time the law caught up with the unmarried bereaved?

15 December 2013
Charles
No comments
Categories: Legal rights

Joe Wilkins was killed by a car while out cycling. The motorist responsible admitted causing death by dangerous driving.

In England, under the terms of the Fatal Accidents Act, a spouse, civil partner or the parents of a minor killed in an accident caused by the negligence of breach of duty of another are eligible for a bereavement payment of £12,980.

Nicci Saunders, Joe’s partner of seven years and the father of their two children, was not eligible for the grant. She and Joe weren’t married.

They do things differently under Scottish law. There’s no fixed limit on the payout and there’s much more flexibility about who qualifies.

Fortunately for Nicci, Joe had his affairs in order and she is provided for. Had he not named her in his will she’d have had no right to inherit, either.

Terribly unfair? Solicitor Joanne Berry thinks so: “The English system does not reflect modern family life … A couple who may have been together for decades but chosen not to marry are treated differently from a bereaved newlywed.

Sources and more detail here and here.

Habeas corpse

1 November 2013
Charles
5 Comments
Categories: funeral directors, Legal rights

Bristol undertaker Thomas Davis has been branded a “‘Burke and Hare’ operation” by MP Caroline Noakes after her constituent Peter Williams accused the undertakers of taking his mother-in-law’s body from Bristol Royal Infirmary and keeping it for ten days without asking.

She said: “Thomas Davis acted unlawfully, because all that had been requested by the Williams family was for them to provide a quote for their services and make provisional inquiries with a local crematorium. There was no contract, no formal quote and at no time were the family informed the body had been collected. Furthermore, at no time was any of the paperwork, required under Department of Health or hospital guidelines for the release of Mrs Pugh’s body, handed over by the family.”

A spokesperson for Thomas Davis claimed that the family had instructed the firm to carry out the funeral, and that the mortuary had released the body owing to “high standing and well-respected reputation” of the undertaker.

The NAFD sided with the undertaker: “The board believe that Thomas Davis acted in good faith, on the understanding that they had been given instructions from Mrs Williams to proceed with the funeral arrangements and have therefore agreed not to take the matter further.”

The hospital apologised to the family and blamed a member of the mortuary staff. (When big things happen, it’s the little guys who get it in the neck.) 

Full story in the Bristol Post here. 

RICHARD III – ILLEGALLY EXHUMED?

28 February 2013
Charles
21 Comments
Categories: Archaeology, Legal rights

Posted by John Bradfield

ED’s note: John Bradfield, founder of the Alice Barker Trust and author of the groundbreaking Green Burial, the DIY Guide, campaigns, together with Teresa Evans, for the legal rights of the bereaved. Here he argues that Richard III  was illegally exhumed. He presents this argument in the context of his and Teresa’s wider campaign against the destruction of countless graves permitted by the granting of what they argue are legally invalid exhumation licences. 

Response to information displayed on the Law & Religion website here. 

David Pocklinton’s perspective on exhumation law is a very familiar one. I would like to present another.
 
David gives the impression, that an exhumation licence must be obtained in all circumstances, unless some other aspect of statute law applies, or a Church of England permission known as a faculty is necessary. The latter only applies to land which has been and remains, legally consecrated by the Church of England. There is also the power of a coroner to exhume but only under statute law and only for the purpose of investigating the cause of one or more deaths.
 
David’s perspective is both right and wrong. It is correct in that there are different sorts of permissions, depending upon the circumstances. It is wrong, in the sense that there are some properties, for which no permissions can be issued. That is so, unless it is possible to obtain a common law consent to exhume – presumably from a court. I have never found evidence of such a consent, from any time in the past.
 
When no statute law applies but exhumations still go ahead, they are illegal under common law and there is no time limit in which to prosecute. I submit, that on the basis of the limited information available about the land in which Richard III was buried, his exhumation must have been illegal, because the licence was unlawful and therefore invalid. If that is so, then his remains were illegally obtained by the archaeologists and they cannot have lawful “custody and possession of (his) remains”.
 
This crucial element of the legal picture was not put to the judicial review in the case of Elzbieta Rudewicz. It was presented to the Court of Appeal in a written witness statement but not discussed, analysed or pronounced upon. It was submitted by the Alice Barker Trust to the UK Supreme Court but there is no evidence of it having been considered or analysed.
I also submit that a judicial review could do more than consider questions of administration law, in terms of how the Ministry of Justice arrives at decisions to issue exhumation licences. A judicial review would, given a fuller and more accurate picture of law, start at the beginning and work forward. Then, the first question for a judicial review must be, “Is it possible to issue a lawfully valid exhumation licence for the type of property in question?”
As that question has never been considered by any court in the case of Elzbieta Rudewicz, a further appeal should be granted but is that still possible?
 
A complaint needs to be lodged with the UK Supreme Court. To that end, those involved would appreciate any pro bono help, in having the true legal position examined with greater precision by the courts. That is necessary in the national interest, because the case of Elzbieta Rudewicz contradicts long established case law, which was not considered, amended or overturned. The outcome thus far is so confused, that contradictory decisions on legal matters may all be valid or invalid, as no-one could be sure one way or the other.
 
One answer is for the police to pursue a common law prosecution over the exhumation of Richard III. He would then have the legacy of having served the national interest after death, by having stopped the outrageous and illegal destruction of graves created within living memory, despite protests from bereaved friends and relatives. Such a prosecution would finally stop civil servants issuing other legally invalid exhumation licences.
 
The police are unlikely to intervene, not least as the government negligently or unwittingly condones and even encourages some forms of criminality, through decisions taken by public services. They confidently act in the knowledge that they do so with total impunity and that is unlikely to change.
 
The provision of invalid exhumation licences, has resulted in the criminal destruction of graves and gravestones over decades. Since its inception in 1948, the NHS has never put a stop to the criminal detention of bodies in hospitals, after bereaved relatives and others have attempted to arrange collections.
 
What’s wrong with dying? Part of the answer is that decision makers are not asking the right questions. Is there a Parliamentary Select Committee which could and should examine these and related issues around death and bereavement?
 
For more details on exhumation law, see the Moonfruit website provided on behalf of the Alice Barker Trust here. 
John Bradfield.
Writer on bereavement law.
 
 

You are the referee

15 November 2012
Charles
8 Comments
Categories: ashes, funeral directors, Legal rights

Here’s another pay-up-or-else story — true but anonymised and deliberately undated. 

A funeral director is refusing to hand over the ashes until the balance of the bill is settled — which it will be if the DSS claim is successful. 

Does he have the right to do this? 

You can’t arrest a corpse for debt because there is no property in a corpse. But what is the legal status of ashes? Are they property? This is something the 1902 Cremation Act didn’t think of, as we have seen in an earlier post. Briefly, they are and they aren’t. If they are, then the funeral director would seem to be justified in withholding them against payment. 

Except that the client’s contract, in terms of cremating the body, was with the crematorium, and the fee to the crematorium was a third-party payment paid in full by the funeral director on behalf of the client. The crematorium fulfilled its contract and presumably has the right to expect the funeral director, as the appointed collector of the ashes, to hand them over to its client. 

Other legal advice offered by solicitors in the locality favours the funeral director.

You are the referee. Is the funeral director legally and morally justified in his actions? 

(We don’t know.) 

What constitutes corpse abuse?

25 September 2012
Charles
8 Comments
Categories: Attitudes to dead bodies, Legal rights, Rights of the bereaved

We don’t have abuse of a corpse laws in England, Wales and Northern Ireland, nor Scotland, not like they do in the US. Indeed, the laws around what you can, can’t and must do with a corpse in the UK are few — so few that we’ve never managed to discover what they are. Perhaps you know?

The status of the dead body is the point at issue. A dead body isn’t property, neither is it human. So, for example, no one can rape a dead body, but there is in fact a law which criminalises sexual penetration of a corpse. It’s a different thing, you see?

In the same way, you can’t arrest a corpse for debt.

But what else can’t you do? 

In the US there are state laws which forbid abuse of corpses. They vary from state to state, but in essence they all outlaw two things:

1. treating a corpse in a way which would outrage family sensibilities

2. treating a corpse in a way which would outrage community sensibilities. 

If we had the same sorts of laws in the UK it is conceivable, if the Daily Mail is to be believed, that the outcome of Wednesday’s ITV exposé might have involved the police. 

Habeas corpse

17 May 2012
Charles
6 Comments
Categories: Art and death, Dead people's rights, Embalming, funeral directors, Legal rights

An email flies in from a consumer advocacy org in the US. It’s about a British funeral consumer, let’s call him Jim, who has asked them for help. Jim has been told by his funeral director that there will be no funeral until he pays most of the bill upfront. Jim can manage much of the bill now, and can pay the balance very soon, but his funeral director won’t budge and the funeral is just days away. So Jim appoints another, more reasonable, funeral director, who rings up FD1 and says he’s coming to collect the body. FD1 refuses to release it.

What, the consumer advocacy org wanted to know, is Jim’s legal position?

I responded with the standard spiel. The executor/administrator is the legal ‘possessor’ and ‘controller’ of the body and it is an offence for anyone except the coroner to withhold the body from that person. Further, there being no property in a corpse, it is illegal to arrest one for debt. What’s more, it is almost certainly lawful to exercise reasonable force to gain (or regain) lawful possession of the corpse.

This applies, of course, whether or not the consumer has entered into a contract with the funeral home. A dead person cannot be used as a bargaining chip, and the executor can take their dead person home whenever, within reason, and as often as they want. I’m almost certain that’s right. 

And then my mind wandered sideways. For a long time I have wondered what it is legal and what it is illegal to do to a dead body. What constitutes what Americans classify ‘abuse of a corpse’?

And I wondered also about something else that’s been bugging me for a while: what status does routine embalming confer upon a body?

Having more pressing, urgent and duller things to do, I went a-googling. This time, I put in my thumb and pulled out a plum. Actually, two plums.

Plum One

The law case that altered the legal maxim that ‘the only lawful possessor of a corpse is the earth’ was the Anthony-Noel Kelly case. He is an artist. In 1998 he exhibited casts of body parts which had been smuggled out to him by lab technician Niel Lyndsay from the Royal College of Surgeons. Both were arrested and charged with stealing human body parts.  At the trial, the defence submitted at the close of the prosecution case that (i) parts of bodies were not in law capable of being property and therefore could not be stolen, and (ii) that the specimens were not in the lawful possession of the college at the time they were taken because they had been retained beyond the period of two years before burial stipulated in the Anatomy Act 1832, and so did not belong to it. The trial judge rejected those submissions, ruling that there was an exception to the traditional common law rule that there was no property in a corpse, namely that once a human body or body part had undergone a process of skill by a person authorised to perform it, with the object of preserving it for the purpose of medical or scientific examination, or for the benefit of medical science, it became something quite different from an interred corpse and it thereby acquired a usefulness or value and it was capable of becoming property in the usual way, and could be stolen. The same applies to body parts “if they have acquired different attributes by virtue of the application of skill of dissection and preservation techniques for exhibition and teaching purposes“.

There we have it. “Preservation techniques for exhibition … purposes.” Does this apply to bodies embalmed for viewing? After all, they have undergone a process of skill.  If Jim’s detained dead person has been embalmed, can his dead person now be classed as property?

Plum Two

The second discovery comes from a case before the European Court of Human Rights in 2007. Briefly, two men were killed in a firefight with Turkish security forces. When things had died down, members of the security forces cut the ears off the corpses.  The applicants complained of violations under Article 3 of the Convention on Human Rights, which prohibits torture, and “inhuman or degrading treatment or punishment”. The court’s judgement was that it appeared that the deceased’s ears had been cut off after they had died. Article 3 had never been applied in the context of respect for a dead body. Human quality was extinguished on death and, therefore, the prohibition on ill-treatment was no longer applicable to corpses; notwithstanding the cruelty of the acts concerned in the instant case. It followed that there had been no violation of art 3 on that account.

I don’t want to speculate on the implications of that.

Information source here.