AFTER A DEATH

EVANSABOVEONLINE.co.uk

Independent Funeral Choice - Sudden Death

 

Most of what follows, is information obtained from the Alice Barker Welfare & Wildlife Trust (01423 530900 & 868121) a charity which specialises on funeral and related laws. Any errors are my own and not those of the Trust. A similar statement is shown at the end of the information freely provided by that charity.

 

YOUR LEGAL RIGHTS WHEN COLLECTING & TRANSPORTING THE BODY

 

Collecting the body

 

Should a coroner be involved, one cannot collect the body until the coroner releases it.

 

For the purpose of collecting the body in England & Wales, the registrar’s certificate for burial or cremation is irrelevant. “There is no legal requirement for hospitals to have sight of the (registrar’s) disposal document before releasing bodies” (Vaughan, A., General Register Office, OPCS. in Funeral Director, Sept.1993:17). There is no law requiring an executor or relative to produce any document, such as a Will, although a funeral undertaker, would need some evidence of authority to act, such as a signed statement from an executor or relative. If the funeral undertaker collects the body, the authorisation of the executor or next of kin is essential. The rights of the executor or relative cannot be obstructed: they may be asked to sign a release form for the hospital’s own records but there is no legal necessity for this.

 

It is common law offence not to hand over a body to the executors or nearest relatives and this applies to anyone or any organisation, including a hospital. Paul Matthews, now a professor of law and coroner for the City of London, stated in an academic article in 1983, that it might be difficult for anyone to bring a charge of assault against those using reasonable force to gain what is referred to as  “lawful possession” of a body. Illegal retention could result in a fine or prison term but the sentence must be in proportion to the offence (R. v Morris 1951 1 KB 394).

 

The following form could be used or adapted by hospitals, hospices, nursing homes and other places, to guide bereaved friends and relatives on their choices and the law. Those collecting bodies could be invited to sign a simple statement, making clear that they have been given the information, which is shown in the first box below. However, it may be illegal to insist, that before the body is released, they must sign a form, no matter how it is worded, i.e. because it appears to be illegal to place any precondition on the release of a body. Only the courts could decide whether it is “reasonable” to insist that something be signed, before a body is released. Until such a court case, anyone or any organisation which insists on a precondition of any sort, runs the risk of facing the wrath of the courts.

 

 

 

HELPFUL INFORMATION WHEN YOU COLLECT A BODY

 

You will have full responsibility, if you remove from this hospital, the body of

 

________________________,

 

 

who’s address was _______________________________________________ 

 

 

and who died in this hospital or elsewhere on the _____________________ (date if known).

 

This leaflet is provided with the body, to fulfil this hospital's duty of care and to ensure you know that you must give the body, to anyone else who asks for it, if they have a greater right to it. Those most entitled are in order of priority as follows:

 

     (1)  the coroner (procurator fiscal in Scotland) if the cause of death must be

              investigated 

 

     (2)  the person responsible for the Will, if the coroner is not involved

 

     (3)  the nearest relative, if there is no Will

 

(4)  the person paying for the funeral, if there is no Will and no responsible relative

 

As long as you are the highest person up this list, you have a legal right to collect the body, whether or not any funeral arrangements have been made. The body can be moved to any place within England & Wales, in any vehicle at any time, without any documents being produced.

 

If you intend to move the body out of England & Wales, the law requires that prior notice be given to the coroner. Free permission will be given quickly, unless the cause of death needs to be investigated.

 

A burial or cremation cannot take place, until the necessary documentation has been issued. For advice on that, contact your local registrar of births and deaths and any public cemetery or crematorium.

 

The nearest relative or other person must visit the registrar, to register the death. The local address is in the telephone directory. It is quicker to visit the registrar in the area where the death took place.

 

Bereavement charities may be able to answer some questions you have on funeral choices. More than 60 MPs  signed Parliamentary statements, supporting the Alice Barker Welfare & Wildlife Trust, which is the only charity in the UK, with a solid track on giving detailed and sound advice on relevant law. It can be contacted on 01423 530900 & 01423 868121.

 

 

This page is a form which could be used when hospital unlawfully, refuse to release a body. What follows is an edition of this form produced after 1994.Suggested information which NHS hospitals could use. Those collecting bodies could be invited to sign a simple statement, making clear that they have been given the information, which is shown in the first box below. However, it may be illegal to insist, that before the body is released, they must sign a form, no matter how it is worded, i.e. because it appears to be illegal to place any precondition on the release of a body.

            

The declaration form below can be used for non-commercial purposes, i.e. if used and a charge is then made for collecting the body, the charge would be treated as a breach of copyright. The non-commercial use of the form is on the strict condition, that all the wording within the frame remains unaltered, unless otherwise agreed with the copyright holder. In the rare circumstances where such a form proves necessary, be sure to take a spare copy to leave with hospital staff.

 

 

__________________________________________________________________________________________________________________

 

 

MY DECLARATION

 

 

 

 

 

My name is ______________________________ address

 

________________________________________

 

______________________________________________________________

 

tel.______________________

 

I am the person named in the Will (administrator or “executor”)                          ____(write “Yes” or “No”)

and/or the nearest relative                                                                               ____(write “Yes” or “No”)

and/or a person entitled to immediate “control” and “possession”               ____(write “Yes” or “No”)

 

of the body of (name of the person who has died) 

 

______________________________________________

 

who died in these premises on (date)  ___________ or whose body was brought here.

 

I have no “reasonable cause to suspect” that the death may not have been natural, so I have no information, which might cause the local coroner to take a different view. As the coroner has (a) not become involved or (b) has ceased to be involved, there are no legal grounds that I am aware of, which might prevent me from removing the body, without delay or precondition. No-one can assume powers, similar to, or greater than those of a coroner (cf. note below about Court of Appeal decision on when the powers of social services end). To protect you from criticism, I am, by signing this statement, making clear that I will give without delay or precondition, lawful possession and custody, to anyone who has a greater claim to the body. I accept that this statement could be used against me in any court action. In view of my statement and that you will not release the body to me, I am handing you this signed Declaration, as the person dealing with me right now. This is my formal, written request to you, to release the body to me, without any further delay or what may be an unlawful precondition. If  you are not prepared to release the body to me or (a) there will be a delay or (b) you insist that I use an undertaker or (c) you insist on some other precondition, such as the production of one or more forms or other documents, I must insist that you complete the Declaration below.

 

 

Signed ___________________  Date  ____________  Time _______

NOTES

No law requires that I show you any documents. Insisting that I produce some document, is likely to amount to an unlawful precondition and could result in court action. NHS policy from 1955 states that hospital staff must not ask to see “green forms” from registrars of births and deaths (HM (55)30 & HM(72)41). Social services and not hospitals can have parental rights but social services only retain powers when children die, if “the parents cannot be found or are unable to exercise their rights” (Court of Appeal 27.03.1991 R v Gwynedd CC 1992 ALL LR 317). Social services cannot impose preconditions on parents and hospitals have no greater powers in dealing with children or adults. You personally could be prosecuted, if you follow printed or other instructions which cause a breach of law. The RCN has agreed that it and the British Association for Accident & Emergency Medicine, made a fundamental error on law, in claiming in an otherwise excellent report, that hospitals “legally own bodies” (‘Bereavement Care In A&E Departments’ 1995:25 and for correction see Nursing Times 11.09.1996:24 and 02.10.1996:27).

 

There is no requirement for me to use undertakers, any special vehicle or a coffin. To insist otherwise, is likely to amount to an unlawful precondition and could result in court action. I am aware that the body must not be exposed, either naked in public or to deliberately shock anyone. However, there is no legal requirement for me to hide the body from view.

 

It is a common law offence to prevent me having “lawful possession” until I have made any funeral arrangements (Williams v Williams 1882 51 LJ Ch 388; R v Fox 1841 114 ER 96; R v Scott 1842 114 ER 97) or to hide the body, whether you are or are not trying to prevent a burial or cremation (R v Hunter et al 1974 LR QB 95). The law demands that I have “control” and “possession” even though a burial or cremation cannot take place, until the necessary documentation has been issued. Paul Matthews (now coroner for the City of London and a professor of law responsible for the relevant text in Halsbury’s Laws of England) stated as long ago as 1983, that it might be difficult to sue, if someone uses reasonable force to collect a body. If you do not hand over the body immediately, a fine or prison sentence could be imposed on you but the penalty must be in proportion to the offence (R v Morris 1951 1 KB 394).

 

 

__________________________________________________________________________________________________________________

 

 

YOUR DECLARATION

 

 

 

 

Name ________________________________Job, Position or Status

 

____________________________________

 

My reasons for not releasing the body to you, are given here and if necessary overleaf :-

 

1.__________________________________________________________________

 

__________________

 

2. ___________________________________________________________________

 

__________________

 

This is when I expect you will be able to take lawful possession, if you are able to do so:-

 

expected date____________ and time_________

 

Date today____________ the time is now_______

 

 

Signed  _________________________

 

Please place your stamp or seal, if any, in this box

© Alice Barker Welfare & Wildlife Trust (bodyform.doc (3)5:2003)

 

 

__________________________________________________________________________________________________________________

 

 

 

 

 

 

TRANSPORT

 

I wanted to bring my son Boyd home from the mortuary myself, when the undertaker delayed in acting on my behalf, resulting in a long delay in seeing and being with Boyd again. I could and would, have bought him home in my own vehicle, to where he belonged, had I known of my rights and not misguided.

There is no requirement to use undertakers for transportation or any other reason and the body can be collected in a car or van.

There is no such thing as a “special licence” for this purpose.

 

Although some publications mention that bodies can be transported by rail (e.g. Which? 1991:87; 1994:109) this service has now been withdrawn (BR1993 pers. comm.). Since privatisation the practical difficulties of communicating with more than one Railway Company, makes moving bodies by train virtually impossible. English, Welsh & Scottish Railways Ltd.