Funeral and Burial Instructions: Report (html)
4. Community values
Introduction
4.1 This chapter sets out the values underpinning the views expressed by community members in relation to funeral and burial arrangements generally. Chapters 5 and 6 set out the community’s views and values in relation to specific reform options.
4.2 Four values consistently underpinned the feedback the Commission received from community members:
• respect for the individual autonomy of the deceased
• respect for the needs of the bereaved in their time of grief
• the need to bury the body without delay
• the need to take the time to say goodbye and make inclusive arrangements.
Respect for the individual autonomy of the deceased
4.3 Many community members expressed the view that the wishes of the deceased should be the primary consideration when arranging the deceased’s funeral and burial.
4.4 Typical of these responses were statements such as, ‘The person who has died should have [the] final say [over] what happens to their body. It was their body’[1] and ‘our body is the one thing which is ours—it’s who we are … Why should our rights to our body mean nothing when [we are dead]?’[2]
4.5 For Russell Edwards, individual autonomy in life and dignity in death are inextricably linked:
Death represents the end of a person’s autonomous, embodied existence. Control over one’s body is relinquished … Dignity after death consists in the exercise of autonomous choice over the circumstances of the relinquishment of control. Survivors can respect the dignity of the deceased person by acting as the agent of the final autonomous act of the deceased, carrying out his wishes in relation to the manner and circumstances of the disposal of his body. The coercive imposition of ‘cultural norms’ against the wishes of the deceased, does not preserve dignity: it violates it, by thwarting the person’s final act of autonomous agency.[3]
4.6 One woman linked her views on this matter to the broader feminist argument in favour of granting women control over their bodies, and stated that a woman’s right to control what happens to her body should continue into death.[4]
4.7 Other community members pointed out that an individual has unique relationships with different people, each of whom might hold a distinct view about what should happen to the individual when they die.[5] The view was expressed that the wishes that should be given the most weight among these competing wishes are those of the deceased.[6]
4.8 Marta Sandberg told the Commission that the death of a person can bring out the worst in those who knew the deceased. Fighting can be a way of avoiding dealing with grief, ‘but that does not mean that legislation should be enacted that encourages this avoidance option’. For Ms Sandberg, funeral and burial arrangements should only be left to family members when the deceased did not express their wishes.[7]
4.9 In its online survey, the Commission asked respondents if they intended to plan their funeral and burial and, if so, why. Respondents were permitted to select more than one reason.
4.10 Seventy-six per cent of respondents said they intended to plan their funeral and burial. Of those, 77 per cent wanted their funeral and burial to reflect their identity and values, and 28 per cent wanted their philosophical, religious or cultural practices observed.[8]
Respect for the needs of the bereaved in their time of grief
4.11 Chris Hall, Chief Executive Officer, Australian Centre for Grief and Bereavement, identified a common tension in funeral and burial disputes: ‘Does the ritual exist for the benefit of the dead or the bereaved?’[9]
4.12 Some community members were of the view that funerals and burials are solely for the bereaved. One online survey respondent said:
I will be dead so who cares. The funeral is for the people who cared about me—it is a ritual that allows them to express grief before moving on with whatever is important to them. I would like my preferred funeral arrangements to be known to them so they can have guidance but if that isn’t what they want it is entirely up to them.[10]
4.13 More common was the view that funerals and burials are for the deceased and the bereaved, but that emphasis must be placed on the importance of funerals and burials in enabling the bereaved to heal.
4.14 Linda Bamblett, Executive Officer, Victorian Aboriginal Community Services Association Limited, told the Commission, ‘Funerals are really important to give people the opportunity to mourn and say goodbye.’[11] If denied the opportunity to do this, ‘it leaves the family with a lot of angst.’[12] Similarly, Christine Hennequin, Manager of Support and Development, Spiritual Health Victoria, said ‘The acknowledgement of the grief of all the significant people in the person’s life is incredibly important.’[13]
4.15 Russell Armstrong, Spiritual Care Worker, Barwon Health Community Palliative Care, expressed the view that funerals and burials could be healing and therapeutic for the bereaved when conducted in accordance with the bereaved’s wishes.[14]
4.16 In response to the Commission’s online survey question asking respondents why they wanted to plan their funeral and burial, 55 per cent said they wanted to avoid placing a financial burden on the bereaved and 45 per cent said they wanted to prevent disagreements among family and friends. Of the 16 per cent who selected ‘other’, a number stated that they wanted to relieve their family members of the distress of making difficult decisions while they were grieving.[15] As noted above, people were permitted to select more than one option.
The need to bury the body without delay
4.17 Many contributors to this inquiry expressed the view that a funeral and burial must be held quickly. Among particular religious communities, ‘quickly’ meant within 24 hours.[16] More broadly, ‘quickly’ meant within four or five days.
4.18 Chris Hall told the Commission that people have a sense that the quicker they can deal with the funeral and burial, the quicker they can deal with their grief.[17]
4.19 Participants in the Commission’s consultation with the Council on the Aging observed that burying the body quickly is also a display of respect for the deceased. It is important, they said, to ‘lay a person to rest’ as soon as possible.[18]
4.20 A dispute over what to do with the deceased’s body may delay the deceased’s funeral and burial. The Commission was told of funerals and burials being delayed for up to six months by disputes.[19]
The need to take the time to say goodbye and make inclusive arrangements
4.21 Many community members said that we live in a death-denying society in which people struggle to talk about death—their own as well as other people’s.[20] When coupled with the widespread, and often related, practice of holding the funeral and burial quickly, it was believed that the bereaved could experience significant harm.[21]
4.22 Chris Hall said that the Australian Centre for Grief and Bereavement’s clinicians see people who are dealing with the residual impact of hastily made funeral and burial arrangements that failed to address their needs.[22]
4.23 Molly Carlile, a member of Palliative Care Victoria, told the Commission that society does not pay enough attention to the time between a person’s death and their funeral and burial, and the fact that most of the damage to the bereaved occurs during this time.[23]
4.24 Sally Cant and Pia Interlandi, committee members of the Natural Death Advocacy Network, stated that the tight timeframe within which funerals and burials usually take place means that the bereaved often rush to take care of logistical arrangements, leaving little time to say goodbye to the deceased, or to sit with their grief individually or collectively.[24]
4.25 Dr Interlandi, who assists elderly and terminally ill people to develop funeral and burial plans, said that after asking the person making the plan what they want for themselves, she often asks them what those close to them might want. If, for example, a person mentions that they grew up in a religious household but no longer practise that religion and do not want a religious funeral, Dr Interlandi might ask if their parents or siblings still practise that religion and, if so, would they feel comfortable allowing their parents or siblings to recite a prayer or perform some other religious ritual before the funeral and burial takes place.
4.26 If a person dies without a funeral and burial plan, Dr Interlandi said that her advice to the bereaved would be to take their time to sit with the deceased to say goodbye, and to then speak with each other about how to honour their relationships with the deceased in the funeral and burial arrangements.
4.27 Unless cultural or religious tenets dictate otherwise, Dr Interlandi said 10 days would be a better timeframe within which to hold a funeral and burial. Ms Carlile was also in favour of expanding the timeframe for funerals and burials to 10 days, believing that this would reduce the prevalence of ‘complicated grief’.[25]
Conclusions
4.28 Community members have strongly-held and sometimes contradictory beliefs about whose wishes should be given primacy when a person dies and how long the process of arranging a funeral and burial should take.
4.29 Despite the broad array of beliefs, it is clear that the current law on funeral and burial arrangements does not reflect the community’s emphasis on individual autonomy. Even those who would place the needs of the bereaved above those of the deceased would rarely render the views of the deceased irrelevant as they currently are under the law.
4.30 It is also clear that the law does not reflect the community’s emphasis on incorporating the wishes of those close to the deceased into the funeral and burial arrangements.
4.31 One of the benefits of granting the executor or likely administrator near-absolute authority over the disposal of the deceased, as the law currently does, is that it allows for the quick disposal of the deceased. In this regard, then, the law does align with one of the community’s core values, namely, the need to bury the body without delay.
4.32 However, this value has been questioned by those who argue that holding the funeral and burial quickly may harm the bereaved by denying them the opportunity to address their needs. Far from being problematic, law reform that extended the timeframe within which funeral and burial decisions were made was perceived by these people to be beneficial.
4.33 Over the next two chapters, the Commission sets out a legislative regime that provides the flexibility required to accommodate the diverse values of the community, while also providing the clarity and certainty needed by people when planning their own funeral and burial and by the bereaved when dealing with the death of a loved one.[26]
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Submissions 10 (Name withheld), 13 (Name withheld), 21 (Confidential), 22 (Confidential).
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Submission 6 (Name withheld).
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Submission 38 (Russell Edwards).
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Submission 15 (Name withheld).
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Consultations 5 (Australian Centre for Grief and Bereavement), 23 (Natural Death Advocacy Network).
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Submissions 10 (Name withheld), 11 (Name withheld), 15 (Name withheld), 21 (Confidential).
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Submission 9 (Marta Sandberg).
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Victorian Law Reform Commission, Funeral and Burial Instructions Survey (2015) <https://www.surveymonkey.com/r/funerals>.
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Consultation 5 (Australian Centre for Grief and Bereavement).
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Survey respondent 46.
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Consultation 4 (Victorian Aboriginal Community Services Association Limited).
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Ibid.
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Consultation 13 (Spiritual Health Victoria).
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Consultation 21 (Barwon Health Community Palliative Care).
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Victorian Law Reform Commission, Funeral and Burial Instructions Survey (2015) <https://www.surveymonkey.com/r/funerals>.
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Consultations 17 (Islamic Council of Victoria), 26 (Jewish Community Council of Victoria).
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Consultation 5 (Australian Centre for Grief and Bereavement).
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Consultation 8 (Council on the Ageing).
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Consultations 4 (Victorian Aboriginal Community Services Association Limited) (delay of one month), 15 (Helen Bishop) (delay of six months).
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Consultations 3 (Christy Hawker), 8 (Council on the Ageing), 9 (Hindu Community Council of Victoria), 13 (Spiritual Health Victoria),
14 (Rumbalara Aboriginal Co-operative and Goulburn Valley Community Legal Centre), 18 (Anne Cregan, Gilbert + Tobin), 19 (Chinese Cancer Society of Victoria), 21 (Barwon Health Community Palliative Care), 25 (Molly Carlile, Palliative Care Victoria); Survey respondents 138, 152. See Chapter 3 for more on this topic.
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Consultation 22 (Annie Whitlocke).
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Consultation 5 (Australian Centre for Grief and Bereavement).
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Consultation 23 (Natural Death Advocacy Network).
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Ibid.
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Consultation 25 (Molly Carlile, Palliative Care Victoria). Ms Carlile defined complicated grief as ‘a diagnosis that requires intervention and is distinguishable from the normal grief a person may experience’.
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This accords with the views of the Law Institute of Victoria, which stated, ‘As death is personal and unique, any legislative framework needs to be flexible whilst providing the requisite clarity and certainty’: Submission 36 (Law Institute of Victoria).
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