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 it deliberately left unasked?
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 only minor relevance to the public interest. 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 MoH's targetted consultation avoided grassroots submitters and Maori.
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 do their job for them.
A cursory look that didn’t suffice? It is just possible the experts did question the general assumption but took a cursory look at New Zealand's small do-it-yourself (D.I.Y.) funeral movement and concluded there is meaningful choice when it comes to deciding whether or not to engage a funeral director.
However, this isn’t true at all. D.I.Y. funeral processes are, almost exclusively, a choice available only to financially buoyant, educated, confident and well-supported people. For example payment for a D.I.Y. burial is required upfront whereas a funeral director’s bill arrives after the funeral and terms can be negotiated. A burial plot alone can cost 3000 or more, a sum of money many households simply don't have ready.
If you’re not well-resourced it's highly unlikely you will 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. For a start it is well night impossible in most districts for a family to collect the second signature off the medical referee themselves. 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.
Needless to say, the MoH review didn't note any of these crucial points. The workings of the medical referee system are, for all intents and purposes a funeral industry trade secret.
The MoH is proposing to improve the medical referee system and hold a central registry as suggested to them by their unpaid advisory team in Death Without Debt, but the basic issues remain. Health Literacy statistics make it clear that tinkering with the system and adding a sentence to the End of Life Services website will never be enough to turn around decades of conditioning that have left the public confused and disempowered.
Doing the sums. While burial is a simpler paperwork process, a burial plot costs more than a straight cremation. This means those who most need to cut costs go for the cheaper option. But they get stung anyway. The hidden paperwork cost for cremation often amounts to more than $2000. Cheaper deals are available in some places by cut-price funeral services, but these packages usually entail the family having to follow a predetermined timeline for disposal and reduce the chances of people of doing the farewell they need.
It is a rare funeral director who walks a family through the maths and provides trustworthy help and advice.
No systems analysis. The websites of the government, mainstream NGOs, and even independent DIY- advocacy activists all gloss over the above, crucial issues. (Thanks to DIYfuneral.co.nz for addressing this). A robust review would have discovered this, but neither the Law Commission or the MoH did their job properly. 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. The review should also have done a demographic analysis of just who is doing D.I.Y. funerals and who isn’t. And of course they should have got out there and talked to people. Even a few simple interviews would have pointed the review in the right direction. (O.I.A. request pending)
Wilful blindness? In the light of the above, it is difficult to believe the MoH were genuinely interested in how the current system is harming people.
Early in the process, 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. 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 though they were, was accepted but the MoH's Summary of Submissions avoided reporting this submissions key points and made extraordinary errors and misrepresentations around other points. It is clear the MoH the MoH's consultation process is little more than a box-ticking exercise.
Ivory tower syndrome We assume the Law Commission staff were legal experts who probably assumed their expertise would uncover everything anyone needed to know. Legal analysis does have high status. But nothing can replace the humble job of asking people about their experiences. Clearly, this didn't happen.
Expert salaries Then there is the issue of the salaries these folk receive. These would not, we imagine, lend recipients to considering the experiences of the poor in any detail.
"Objective" detachment 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. This 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.
Lack of accountability The staff involved in this review would likely be aware death is not a subject many people take a detailed interest in. They would have probably assumed that public scrutiny was unlikely. And, indeed, until now, that was the case.
Caught out and now denying it The MoH have been caught out failing to consult properly with Maori, turning a blind eye to the mechanism by which the funeral industry enjoy a captive market and so on. Yet they they are still not doing things right. Why? One explanation would be that properly acknowledging these errors entails admitting gross incompetence and favouring industry profits over public interest. It would also 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. And it requires humanity.
Complaints Complaints could have woken the experts up. But so effective is the system at removing even the thought of challenge from ordinary people, few people get far enough through the D.I.Y. cremation process to be able to complain about it.
If a person or family were to attempt a D.I.Y. cremation (say, because it was stipulated in the deceased’s instructions) the injustice of being stonewalled by the medical referee system would probably just be accepted. Given the choice between getting on with your life (and your grieving) or banging your head against the brick walls erected by the establishment, most people choose the peaceful option.
Even when the media cover the issue, (however shallow and inaccurate the coverage may be), officials and medical professionals still fail to respond. One wonders whether the public service staff are human.
The chances of complaints being laid are further reduced by the fact the official and independent advice on the subject glosses over the obstacles people face in the process. This leads people to assume the problem lies with them, not the system.
But should you want to complain, where do you go? Almost all doctors – and nurses - are too busy to pay the matter any attention (we know, we’ve tried many times and the professional associations and unions also refuse to engage). Public health officials, including those in the MoH, have not, to date, shown any sign they care, besides it is clear they don't understand their own processes let alone the problems. One, brief exception was the Dept of Internal Affairs who did hire a consultant to meet with Death Without Debt, but never followed up that gesture with action. Their processes still heavily fabour the funeral industry and exclude the public.
What about the Health and Disability Commission? According to their regional representatives, they don't cover after-death patient and family care. But when you ask the national office, the story is that the representatives do have discretion. So the most that can be said is they have a nice little system for passing the buck.
Neither regional or central Hospice offices will touch this issue for reasons which seem rather murky.
And no MP outside the Green Party has engaged.
Conclusion The experts probably missed asking why the funeral industry has been gifted a captive market for all the above reasons. They may have been understaffed, but if so, honesty about this would have been better than employing the psychological violence which now seems to pass for "pretend" consultation in the NZ public service.
* First principles include such old fashioned bedrocks as human rights, the need for a system to include humane care, and, God forbid, official responsibility.