Medical practitioners in Jersey are being placed at “unacceptable risk of prosecution” under an “extremely outdated” cremation law that could see them commit a criminal offence if they authorise cremation without knowledge of burial instructions contained in a will.
The Cremation (Jersey) Regulations 1961 makes it unlawful to cremate someone who has ever left written instructions against cremation, even if, years later, they told loved ones they had changed their mind.
The rule was scrapped in the UK in 1965, but Jersey never followed suit.
Now Health Minister Tom Binet is urging politicians to approve sweeping reforms, warning that the island’s legislation has “not been updated for a considerable period” and has “caused unnecessary distress and costs for some bereaved families”.
At the heart of the controversy is a prohibition that remains binding even if the deceased later expressed clear, informal wishes to be cremated.
“There appears to be no sound policy reason why this prohibition has remained in Jersey for nearly 60 years after its repeal in the UK, particularly given the evolution of modern burial practices,” said Deputy Binet.
“Increasingly, cases are emerging in which a will, sometimes decades-old, specifies burial, while relatives request cremation based on the deceased’s more recent informal or spoken wishes.”
The Minister said the situation is having a “significant impact” in the island, “causing distress and legal costs for families who face substantial barriers to fulfilling their loved one’s final wishes”.
He warned that the law places the government in an invidious position “where it must refuse to authorise a cremation even if this is the family’s wish, thus inappropriately placing the state in a position of arbitrating sensitive private family decisions”.
For medical staff, the stakes are even higher. The safeguards available are described as “extremely weak”, limited to a single question on an application form and whatever information can be gleaned from relatives or funeral directors.
“Staff have expressed deep concerns about the risk of prosecution and also the high level of potential distress caused by refusing a cremation on these grounds,” explained Deputy Binet.
The problem is intensifying as cremation becomes the norm in Jersey, now accounting for around 80% of deaths.
It is compounded by a “growing awareness among legal professionals and funeral directors, who increasingly ask to check wills and documentation for burial instructions,” said Deputy Binet.
“Regardless of the reasons for this development, the issue is significantly disrupting the authorisation process, risking cremations being refused even with strong supporting family testimony,” the Minister added.
If approved in the States Assembly next month, Deputy Binet’s proposition would repeal the two key provisions banning cremation where contrary written instructions are known.
Responsibility would instead rest with the executor or a “near relative” – including a spouse, civil partner, parent, child or relative living with the deceased – who would consider the will alongside the faith, culture and wishes of the deceased.
Deputy Binet said this would ensure that “the final decision would be left in the hands of the executor or family members rather than the government” – ending what he described as the inappropriate role of the state in arbitrating private family decisions.
The reforms would also modernise the cremation application form, adding a new safety question on medical implants such as pacemakers and radioactive devices, and update countersignatory rules currently described as “overly restrictive”.
If adopted, the changes will apply to anyone ordinarily resident in Jersey for at least three months and will come into force within seven days.