Public Health Regulation 2022
The Public Health Regulation 2022 commenced on 1 September 2022.
The Regulation makes provision for disease control measures and the the facilities and procedures for the handling of bodies of deceased persons, exhumations, cremations and other matters relating to the disposal of bodies.
This section provides information for people who need to arrange a funeral. It discusses the requirements after someone has died and making the funeral arrangements.
The necessity of organising a funeral comes at what can be the most difficult time in people’s lives — a time of bereavement. Bereavement counsellors emphasise the therapeutic value for bereaved people of arranging and participating in the funeral service. The main importance lies in this participation, and the ritual of people coming together and saying something, rather than in displays of expensive equipment such as hearses, chapels, coffins and cars. However, for some people, a funeral is the last chance they have to show respect for a family member, so the money they spend on the funeral may be seen as a tangible expression of that respect.
When someone dies
Whether a person dies at home or not, the senior next of kin have certain responsibilities. While they are under no legal obligation to accept responsibility for arranging the funeral, they are required to provide personal details of the deceased within one month of the death so that the death can be registered. If no next of kin are available, anyone who knows the facts can be asked to provide this information.
When the deceased has appointed an executor in their will, it is the executor’s responsibility to organise the funeral. The executor has a right to the possession and custody of the body until it is buried or cremated and is not bound by specific directions left in the will. However, under the Human Tissue Act 1983 (Part 5), the executor is not empowered to make decisions about organ donation and post-mortem examinations; this right falls to the ‘senior available next of kin’ (see definition below).
If there is no will or appointed executor, the next of kin is responsible for the body. The police may be asked to find the next of kin and tell them about the death. If the next of kin doesn’t want to be involved, the funeral may be arranged through the government contractor (see Destitute funerals in the Funeral costs chapter).
Who is the next of kin?
There is a hierarchy that is applied when deciding who the next of kin are. As defined by the Coroners Act 2009 the ‘senior available next of kin’ will be the deceased person’s spouse (including same sex spouse) or de facto spouse/partner, or adult children or living parents or adult brothers or sisters or the executor or lastly the deceased person’s legal representative. In NSW, the Property (Relationships) Act 1984, section 4 defines a de facto relationship as that between two adult persons living together as a couple who are not married to each other or related by family.
If a couple (including same-sex) are living in a de facto relationship and one person dies without leaving a will, their partner’s wishes may be ignored by the family unless the partner can establish that a de facto relationship existed. This can be an important issue for the deceased person who may have wanted their partner rather than their family to make the funeral arrangements. Even then the executor is not bound by the directions left in the will. Disputes over ownership of the body or decisions about funeral arrangements are referred to the Supreme Court for hearing. Costs are met by the disputing parties.
Deaths at home
When someone dies at home, a doctor should be called to pronounce the person dead and to issue a medical certificate of cause of death. (In NSW, the law states that a person is dead when their brain stops functioning or their blood circulation stops, and these processes cannot be reversed.) If the doctor cannot, for any reason (see Coroner’s cases in the Post-mortem examinations and Coroner's cases chapter) issue a medical certificate of cause of death, they must notify the local police who are responsible for referring the death to the coroner. The police will arrange to remove the body to the nearest forensic mortuary and a coronial investigation begins.
When the cause of death has been certified by the doctor, either the family or the doctor should choose a funeral director and contact them to arrange for removal of the deceased to their premises. This may take some time, so if the family wish, the deceased can be left at home while arrangements are made. Health regulations allow for the body to remain unrefrigerated for up to eight hours.
When a death at home is expected, particularly in rural settings, doctors can complete a form before the death occurs to make the death certification process easier. The form is SMR010.531 Death Certification Arrangements for Expected Home Death and it is covered in the NSW Health Policy Directive PD2023-014 Death – Verification of Death and Medical Certificate of Cause of Death.
Keeping the body at home
If the next of kin wish to keep the body at home, they may ask the funeral director to collect the deceased and prepare the body at the funeral director’s premises and then return it to the home until the time of the funeral. The deceased can remain in the home with the family for up to five days. However, an application to the local Public Health Unit must be made for an exemption to ensure there is no public health risk. It is the custom in some communities that the family dress the body themselves and keep the body at home for viewing until the time of the funeral.
A body that has not been embalmed cannot be left unrefrigerated for more than eight hours in any day because of the risk of deterioration (Public Health Regulation 2022, clause 86).
NSW Health requires that a funeral director must know where the deceased is at all times. Transport is provided by the funeral director. It is a health risk (and otherwise problematic) to transport a deceased person in a private vehicle.
Deaths in hospitals and institutions
About 90 per cent of people who die each year in NSW do so in a hospital or other institution (Productivity Commission, Reforms to Human Services Inquiry Report, 2018). After a medical certificate of cause of death is issued, the body is kept at that institution’s morgue until the next of kin makes arrangements for a funeral by contacting a funeral director. If there is no morgue at the institution, the next of kin must arrange to have the body moved to a funeral home as soon as possible.
If there is no next of kin
When a person dies in hospital, the hospital where they died must accept responsibility for arranging and paying for the funeral by engaging the government contractor if:
- the person has no next of kin or friends to arrange or pay for the funeral
- the person had no money or other assets, and
- the coroner is not involved.
If a person died at home, and has no next of kin or friends to arrange or pay for the funeral, had no money or other assets, and the coroner is not involved, the police will complete a Burial/Cremation of a Deceased Destitute Person form P372, which is sent to the Director of Public Health Unit (PHU) of the relevant Health Service. The government contractor will be contacted by the PHU to organise a funeral. If a medical certificate of cause of death was not issued, the body is taken to the coroner’s morgue.
The coroner issues an Order for Disposal of a Destitute Person and forwards it to the Director of the relevant Health Service’s Public Health Unit (PHU). The PHU, in turn, contacts the government contractor who forwards the invoice to the PHU for payment by the Area Health Service (see Destitute funerals in the Funeral costs chapter). The police arrange the destitute funeral.
If the deceased has no next of kin, but did have money or assets, the case is referred to the NSW Trustee & Guardian who arranges and pays for a funeral from the deceased person’s estate.
The forms and orders mentioned above can be found in the policy directive PD2008_012 Destitute Persons - Cremation or Burial which outlines the requirements, responsibilities and procedures for the funeral and cremation or burial of deceased persons without financial means in NSW. This policy directive is currently under review. This PD can be found on the NSW Health web page Final arrangements of the deceased.
Obtaining a death certificate
After a medical certificate of cause of death has been issued by a doctor, either the doctor, the executor or the funeral director should send it to the Registry of Births, Deaths & Marriages. Once the death has been registered, the death certificate can be issued.
A death certificate is issued only to the next of kin or a person authorised by them. An application form has to be completed by the next of kin to identify themselves (with three forms of identification) and stating the reason for wanting the certificate. Alternatively, the funeral director can obtain the death certificate on the family’s behalf. Forms are available from the NSW Registry of Births, Deaths & Marriages or from their website. Personal details of the deceased, their date of birth, when and where they died, and the names of the deceased’s parents (including mother’s maiden name) and name of spouse needs to be provided.
As at July 2023 a standard death certificate from a Service NSW office costs $60. All certificates are sent by registered post.
- Coroners Act 2009 (NSW)
- Human Tissue Act 1983 (NSW)
- Property (Relationships) Act 1984 (NSW)
- Public Health Regulation 2022 (NSW)
- Legal Aid NSW | LawAccess NSW - After someone dies has information about who to notify after someone dies, funerals, the will, dealing with the estate, after probate or administration, distributing the estate, and family provision claims, as well as flowcharts, forms and frequently asked questions.
- The Australian Death Notification Service is a collaboration of the Births, Deaths and Marriages registries across Australia. It aims to let people notify government and non-government agencies, organisations and institutions that someone has died, just the once.
- NSW Health - Final arrangements of the deceased
- NSW Registry of Births, Deaths & Marriages - Death certificate