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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 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 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.

Another possibility is that the Law Commission staff, well salaried and comfortably off, deliberately chose to ignore the issue. 

Either way, it's a very bad look for the "experts".

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.  For a start it is well nigh 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 the funeral-industry's 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 and drives the cost over that of burial.  Cheaper deals are available in some places by cut-price funeral services, but these packages don't allow for many of the usual customs - such as following the body to the crematorium (often via a funeral service), 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 pinpointed the dysfunction.  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.  As far as the Law Commission was concerned, it appears to have been a case of "Ivory Tower Syndrome" where the academic world view, combined with a high salary, disengaged the experts from reality, and the suffering the system is causing.

"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.

​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.  However the MoH's Summary of Submissions avoided reporting this submission's key points and made extraordinary errors and misrepresentations around other points.  It is clear the MoH's consultation process is little more than a box-ticking exercise.  

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 many other failures.  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 most people, faced with wall to wall discouragement, assume the fault lies with them.  Besides, few people get far enough through the D.I.Y. cremation process to be able to complain about it.  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.


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 favour 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.  The national office however say representatives do have discretion - 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 MP's are very hard to engage.  Death Without Debt delivered 120 coffin briefing packs to Parliament in 2022.  Not a single MP from the Labour Government came to meet us, or ever replied.

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