Should the “Death Care” Industry be Regulated?

With the legalization of physician-assisted dying, the topic of death is becoming less and less taboo in Canada.

Among the discussions have been several media articles about “death doulas” or “death midwives”, who provide services to people who are dying and their families. The services include such activities as:

• Creating death plans
• Providing community resources
• Bereavement support
• End-of-life spiritual care
• At-home funerals
• Making funerals meaningful
• Forgiveness rituals
• Counselling
• Psychological and social support
• Planning vigils
• Advance directives
• Post-death care of the body
• Companionship
• Advocacy
• Updating out-of-town relatives
• Assistance in the home, making arrangements
• Navigating funeral planning
• Emotional support for families following a death

The idea is inherently appealing and there is certainly room for service providers to make the death and dying process more meaningful and less institutional. These service providers often describe their work as a philosophy, recognizing that death is part of life and that certain traditions and rituals can help with the healing process. Some of them focus on slowing the transition so that the family has time to process the death before the body is whisked away.

The fact that many of these individuals are volunteers makes it clear they are driven by a passion to help. However, as a new field there are multiple legal issues that could pose problems for these service providers and the public alike.

Issue 1: What should they be called?

Death doulas, death midwives, soul midwives, death coaches, mourning doulas, thanadoulas, community death-care, and end-of-life practitioners are just some of the titles being used for this emerging field.

In Ontario, and many other provinces, there are laws that restrict who can use certain titles, such as “doctor”, “midwife” and “pharmacist”. The public is protected knowing that persons who use these titles are highly educated, qualified and licensed professionals.

Use of the title “midwife” is restricted to individuals who have completed university midwifery degrees and fulfilled the requirements of their respective colleges. Under Ontario’s Midwifery Act, 1991, “No person other than a member shall hold himself or herself out as a person who is qualified to practise in Ontario as a midwife or in a specialty of midwifery”. A person who uses the title without authorization can be fined $25,000 for the first incident, and up to $50,000 for a second offence.

Midwives are highly trained health professionals. They can be authorized to insert catheters, perform episiotomies, prescribe certain drugs, and intubate a newborn. It is no wonder that many are concerned by the casual emergence of the term “death midwifery”. For this reason the Colleges of Midwives in Ontario and British Columbia have reportedly sent cease and desist letters to persons using the term “death midwife”.

The term “end-of-life practitioner” could also pose some issues because the word “practitioner” is often used in reference to health professionals. For example, under the Criminal Code of Canada:

medical practitioner means a person who is entitled to practise medicine under the laws of a province.

nurse practitioner  means a registered nurse who, under the laws of a province, is entitled to practise as a nurse practitioner — or under an equivalent designation — and to autonomously make diagnoses, order and interpret diagnostic tests, prescribe substances and treat patients

The term “practitioner” might connote a credibility that does not exist.

Non-legal issues also emerge given the wide range of services offered. For example, the term “mourning doula” makes little sense if the person only provides services to the dying individual and not post-death bereavement support to the family.

People pursuing this line of work, even as volunteers, ought to seek legal advice in their own jurisdictions to ensure the terminology used to describe their work is legal.

Issue 2: What services should they provide?

Some of the people providing these end-of-life services have relevant credentials – they are trained as social workers, clergy or funeral directors. However, some people may be venturing into services that require a licence they do not possess.

In Ontario, pursuant to the Regulated Health Professions Act, there are particular “controlled acts” that legally cannot be performed by just anyone.  The most recent “controlled act” added to the list is psychotherapy, defined as “Treating, by means of psychotherapy technique, delivered through a therapeutic relationship, an individual’s serious disorder of thought, cognition, mood, emotional regulation, perception or memory that may seriously impair the individual’s judgement, insight, behaviour, communication or social functioning.” Once this provision of the law comes into force, practicing psychotherapy without a licence will be against the law. Some of the end-of-life counselling services may very well be considered “psychotherapy” in Ontario, as well as Quebec and Nova Scotia.

Some of the service providers offer home funeral services that would bypass funeral homes. It is important to note that there are laws governing how deaths are registered, how bodies are transported and how burials are completed. There is a Funeral, Burial and Cremation Services Act, 2002, which sets out ten different classes of licences available (e.g. funeral preplanner, cemetary operator and funeral director). A person who independently and casually enters the funeral business risks breaking the law.

Finally, some end-of-life professionals offer advice about and drafting of advance directives, such as living wills; in some cases they appear to be providing legal services for which a licence is also required.

There are a variety of schools and training programs around the world that offer credentials as “death midwives” (or “death doulas”, etc.), but the credentials have no legal basis (though that is not to say they don’t offer value to participants).

Issue 3: Will they be allowed to provide the services?

Separate and apart from the legal barriers, there may be policy and other practical barriers to providing some of the services as advertised.

Many health care institutions have policies whereby only insured people can enter and provide services to patients. There are visiting hours and limitations on the number of visitors, which could interfere with the promise of continued companionship.

If a person dies at home and the family calls 911, the coroner who is ultimately contacted may not allow a family to keep the body at home for a day or two as promised by some of the end-of-life care service providers. Further, by law there are some circumstances, such as where a person dies while resident in a long-term care home, in which no one is allowed to interfere with or alter the body.

Some funeral homes may resist the idea of a “professional” from outside the industry or family becoming involved with the planning process.

Until these service providers become more established they may face a host of barriers as they try to carve out this new terrain.

Concluding Thoughts

Many aspects of the death care industry are already regulated. Perhaps what is needed is not more regulation, but a clear delineation of what services are both legal and practical.

If a dying person or their family can find peace or support through engaging the services of these professionals, then to a large extent they should be welcomed. But persons providing these services, and consumers, need to tread carefully to ensure laws are not broken in the pursuit of a good death.

If a dying person wishes to engage the services of a death-care professional, it would be prudent to formally document these wishes in their Wills and Powers of Attorney for Personal Care (depending on the type of wish), and to communicate them in advance with the people who have the ability to either facilitate or obstruct those wishes from being fulfilled.

 Photo credit: hans s via Foter.com / CC BY-ND