How the Experts in the Law Commission & the Ministry of Health Missed the Obvious
It may seem puzzling that both the Law Commission and the Ministry of Health (MoH), after an astonishing 11 years investigating burial-and-cremation law and processes, failed to ask the most important question of all: “How did the funeral industry end up with a captive market?”
This question should have been the starting point for the review’s work on protecting the public. But instead it was completely missed. Or was the omission deliberate?
The Law Commission and the MoH have both been captured. Documents released under the Official Information Act show the MoH spent substantial time seeking out the views of the funeral industry. (Information isn’t available about the Law Commission in this respect). Much of this meeting time was clearly necessary to take advantage of the industry’s experience on a range of topics, some of only minor relevance to the public. However, as far as we are aware, no similar effort was made to investigate or analyse how ordinary people experience the burial-and-cremation process. Even after submissions were called for and it was clear there was widespread concern about the damage the funeral industry was inflicting, the MoH didn’t redress the imbalance.
The captured mind doesn’t think to ask. When the time comes to organise a funeral, very few people think to bypass funeral directors. Fewer know how. The experts may have been no different and carried this thoughtlessness through to their review. If so, this was extraordinarily unprofessional. Reviews are supposed to be rigorous, methodical and assume nothing. If the Law Commission and Ministry of Health had followed standard academic and legal protocol and started from first principles*, Death Without Debt (and other grassroots funeral groups) would never have needed to step in and try and bring attention to these issues
Another possibility is that review staff, well salaried and comfortably off, deliberately chose to ignore the issue.
Either way, it’s a very bad look.
A cursory look that didn’t suffice? It is just possible the experts did question the general assumption but took a cursory look and concluded from the existence of the small DIY/Home funeral movement that there is meaningful choice when it comes to deciding whether or not to engage a funeral director.
However, this isn’t true at all. If you’re not well-resourced, it’s highly unlikely you will even realise there might be a choice how to proceed. Even if you do know you might be able to do it yourself, the chances of you escaping the paperwork trap – and the rest of the funeral industry’s business model – are remote.
Social pressure to conform and go with tradition (recent though it is) comes from all directions. Deviation from the norm is regarded with suspicion and anyone who attempts anything unusual is viewed as a liability. Medical and social work professionals are liable to browbeating people doing it “differently”, as are family members and friends. In the pressure of the moment, people tend to take the path of least resistance, pick up the phone and dial a funeral director.
Nowhere in the review documents was any of this discussed. Nor was another crucial detail: those who choose a D.I.Y. funeral process are almost exclusively doing so en-route to burial. Although government and independent websites and guides give the impression one can D.I.Y. a cremation, it is, almost without exception, impossible.
Given 75% of New Zealanders end up cremated, that’s a pretty significant oversight.
It is well nigh impossible in most districts for a family to collect the necessary second signature to sign off a cremation. Doctors and nurses generally have no idea what a medical referee is, let alone where to find one, so even when they are supportive, they are seldom any help.
Again, the experts didn’t note any of this.
The workings of the medical referee system are, for all intents and purposes the funeral-industry’s trade secret.
The MoH, in response to pressure from DWD has mentioned improving the medical referee system and holding a central registry. But the basic issues remain. Health Literacy statistics make it clear that mere tinkering with the system will never be enough to turn around decades of conditioning that have left the public confused and disempowered.
No systems analysis. The websites of the government, mainstream NGOs, and even independent DIY- advocacy sources gloss over the above, crucial issues.
What was needed was a systems analysis – just like the commercial world does to ensure nothing is too difficult for customers to negotiate. Did the MoH do this? If they did, there is no mention.
Where was the demographic analysis of just who is doing D.I.Y. funerals and who isn’t?
Did they get out and talk to any ordinary people at all?
Overall the review suffers from Ivory Tower Syndrome” where the academic world view, combined with a high salary, seems to have disengaged the review from reality.
The review is devoid of any statements conveying the human cost of the system: the weekends worked in low paid jobs to pay off a funeral that occurred 10 years before, the financial collapse of households. There is no mention of the extortion and bullying practiced by some in the funeral industry, the medical profession and even hospice staff.
The missing human element only adds to the evidence the MoH have been captured by the sector it was their job to investigate. The MoH have provided the industry and the medical profession with a whitewash.
It is also interesting to note the MoH were alerted, through the media and from individual complainants, to the serious concerns we raise. Despite this happening during the review process, no interest was shown.
Complaints could have woken the experts up. But most people, faced with a system they can’t understand and a wall of silence assume the fault lies with them; few get far enough through the D.I.Y. cremation process to be able to complain about it. If they do, given the choice between getting on with your life (and your grieving) or banging your head against the brick walls of the establishment, most people choose the easier option. The Health and Disability Commission don’t accept complaints about after-death duty-of-care.
To complete the picture, the scope of the review’s public consultation process actually excluded the D.I.Y. experience and other important, and obvious, issues. A special submission from Death Without Debt, addressing these issues, outside the scope of the review was accepted. However the MoH’s Summary of Submissions avoided reporting this submission’s key points and made errors and misrepresentations around other points. It is clear the MoH’s consultation process is little more than a box-ticking exercise.
The staff involved in this review would likely be aware death is not a subject many people take a detailed interest in and public scrutiny was unlikely
Yet even as Death Without Debt’s work gains traction, the MoH are still not doing things right. Why? Is this because properly acknowledging these errors entails admitting gross incompetence and favouring industry profits over public interest? Is it also, perhaps, because the mistakes would entail changing the basic structure of the review that has kept them comfortably on-side with the funeral industry for more than 10 years
Coming clean requires work. It involves integrity. It requires humanity.