Disposal of a dead body

There is a duty upon certain people to dispose of a body after a death. This duty falls on the executor or administrator of the deceased’s estate, the parents of a deceased child (if the parent has sufficient means), a householder upon whose premises the body lies (this includes for example, a hospital authority if the body of a dead patient is on its premises) and the local authority where no arrangements are otherwise made for the disposal. Although the executor has a right to dispose of the body, he or she must not spend more than a reasonable amount on funeral expenses without specific authority or consent from the beneficiaries of the deceased’s estate.

If the local authority disposes of a body it may recover its expenses from the deceased’s estate, the deceased’s spouse, or parent if the deceased is a child under 16. If the death is of a child in its care under aged 18 the local authority may also dispose of the body, although it must not cremate the body if there is reason to believe that this was against the child’s religious persuasion. The local authority should also not cremate a body if it has reason to believe that cremation would be contrary to the wishes of the deceased.

It is an offence for any such person, having sufficient means, to fail to discharge this duty. Other offences arising out of the use of a dead body include detaining a body, refusing to deliver it to the executors for burial, conspiring to prevent a lawful and decent burial, disposing of the body to prevent an inquest, selling the body for dissection (except as is authorised see below) and exposing the body in a public place if to do so would shock public decency. See also cremation below.

A dead body can be kept in a house or other building for a period of time before disposal, subject to public health laws relating to circumstances where the retention of a body in a building would endanger the health of others in that, or neighbouring buildings in which case the provisions of the Public Health (Control of Disease) Act 1984 apply. There are other regulations that apply (outside the scope of this work) in relation to contact, removal and disposal of a body of a person dying from a notifiable disease, such as cholera, plague, relapsing fever, smallpox, typhus or an infectious disease to which a local authority has applied the provisions of the Public Health Act 1968.

Burial

There is no requirement that a body should be buried in an authorised place and a place of burial may be established on private ground, provided no nuisance is caused. A private Act will be necessary however if the ground is to be consecrated. There may however be a restrictive covenant on the ground preventing the creation of graves, and an application would have to be made for the removal of the covenant for a burial to take place there. Burial in a woodland or nature-reserve burial ground has grown in popularity amongst those preferring ecological burial. Usually a tree will be planted, instead of the usual headstone. The site must however have planning permission for such use. There are detailed regulations regarding burial in churchyards and on consecrated ground, which may be found in ecclesiastical law; provisions relating to the establishment and maintenance of public burial grounds may be found in the Local Government Act 1972 and The Cemetries Clauses Act 1847.

Before a burial can take place in England or Wales, the executor or next of kin must obtain a certificate of disposal from the Registrar or a burial order from the Coroner. If the Coroner has jurisdiction and decides to hold an inquest, burial will be delayed until a post mortem or other examination has taken place.


Cremation

Unlike burials, cremations may only take place in an authorised crematorium and it is an offence to burn a body except in accordance with statutory provisions contained within the Cremation Acts 1902 and 1952 and statutory regulations and provided that no nuisance is committed. The ashes of the deceased should be given to the person who applied for the cremation or if this is not desired, retained by the cremation authority for disposal in accordance with the relevant regulations.

When a person is cremated there is no opportunity for further examination of the body following exhumation, therefore additional safeguards are imposed to ensure that there are no suspicious circumstances necessitating further inquiry before a body is cremated.

An application (on ‘Form A’) must be made for a cremation supported by certificates from two medical practitioners certifying the cause of death and that there are no known circumstances justifying an inquest. The first doctor will usually be the attending doctor (who completes Form B); a second doctor will carry out his or her own enquiries and complete a confirmatory certificate (Form C).

If the death has come to the attention of the Coroner he may issue a certificate (Form D) after a post mortem examination or (Form E) at the conclusion of the inquest. If the body is being cremated following anatomical examination, a different certificate again is issued.

A cremation cannot take place until after the death has been registered unless the Coroner has given a certificate for cremation (Form E) or the Registrar has certified that the death is not one which must be registered. For example, it is not obligatory for the death of a person outside England and Wales to be registered.

After a certificate (or certificates if certified by two medical practitioners) has been issued, the authority of the Medical Referee of the Cremation Authority must be obtained. The Medical Referee must certify that the cause of death has been ascertained and there is no reason for any further enquiry or examination. The Medical Referee should not allow a cremation to take place where it appears that there are suspicious circumstances, unless an inquest has been opened and the Coroner has issued a certificate pursuant to that inquest.

In the case of a stillborn infant, the Medical Referee of the Cremation Authority must be satisfied that the infant was stillborn and the cremation may only take place if a registered medical practitioner, who has examined the infant, certifies that the infant was stillborn.

Exhumation

Once a person has been buried it is unlawful to disturb or remove the body without lawful authority. It is also an offence against ecclesiastical law to remove the remains of the dead from consecrated ground without the proper authority (a faculty) to remove the dead – including ashes of a cremated body - from one consecrated ground to another. There are exceptions under the Town and Country Planning Act 1990 and the Disused Burial Grounds (Amendment) Act 1981 which allow the dead to be moved in certain circumstances, which are outside the scope of this work as are the detailed provisions which apply in these circumstances.

Furthermore, once a Coroner assumes jurisdiction over a body, he or she has the right to possession of the body and has power (under the Coroners Act1988) to order exhumation where it appears either that it is necessary for the purpose of holding an inquest or discharging any of his functions in relation to the body or the death, or if it is necessary for the body to be examined for any criminal proceedings relating to the deceased’s death or any other death in connected circumstances. The power to order an exhumation of the body is limited to these two purposes. If the Coroner decides that an exhumation is necessary for one of these purposes he or she will issue a warrant to the persons in charge of the burial ground or cemetery.

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