Mosque Trustees: Consider Your Legal Liabilities Before You Open Your Mosque to Ghusl Services for COVID-19 Victims

The Big Picture: Daily Deaths from COVID-19 in the UK are now matching those of Italy’s at the same respective stage in the spread of the infection in each country (Day 0=5 fatalities or less).

There has been a general move over recent weeks from leading Muslim community organisations to put forward or least keep open the option to perform major ablutions (ghusl) of the deceased, which is an obligation in Islamic legal terms, in the case of those who have passed away due to the COVID-19 infection.

Negotiations at a national level were undertaken by the National Burial Council (NBC), and their leadership in this process was recognized by other key national stakeholders. The Muslim Council of Britain (MCB), the British Islamic Medical Association (BIMA) and the British Board of Scholars and Imams (BBSI) issued guidance that did not rule out ghusl being undertaken by mosques; in BIMA’s case, this took the form of a risk assessment on medical grounds and risk mitigation measures for each potential option. Just today, Faith Associates alongside several regional mosque councils put out a call for “ghusl and burial champions needed nationwide”.[1a]

Call put out by Faith Associates and several local mosque associations on 5 April 2020 on WhatsApp and other social media.

It appears that many UK scholars currently emphasize the continuance of ghusl while a minority currently emphasize its suspension due to lack of facilities, equipment or adequate training. It is not so much a legal difference as a varying assessment of the level of risk of contamination from the deceased to the living, or from the living to the living involved in the process of performing the ghusl. And it is also a largely unexpressed difference of opinion in what the on-the-ground realities would be for mosques gearing up to provide the ghusl on their premises in the teeth of this crisis: will they be well organised enough, well equipped enough, well trained enough, and so on? One working compromise has been to set out these two options as a risk-mitigation-based decision tree, prepared by BIMA, which charts the safest way forward based on local circumstances.

Videos have been released by scholars in recent days promoting ghusl of COVID-19 victims inside masjid premises and making an appeal to them to open these facilities to meet demand. As a religious scholar or as religious association of scholars promoting these appeals, is it right to appeal to masājid to take up this role, and to open their premises, without due diligence?[1b] After all, a religious opinion is not a risk assessment or an assessment of legal liability under UK charity law. In fact, the scholars pushing this religious opinion have no legal liability for this decision but you as a mosque trustee do. If your own imam is pushing this religious opinion, then remember that if he is employed by the masjid it is considered a conflict of interest for him to get involved in this question at all. As a mosque trustee, the responsibility of doing proper risk assessment for your staff and any volunteers is yours alone as is the legal liability for it.

In one recent case involving a Muslim charity (on another matter), the centrality of proper risk assessment procedures for charities was reiterated by the court.[2] At the time of writing, this aspect of trustee responsibility and legal liability under UK charity law and other relevant legislation has not been addressed by any of the scholars and community organisations pushing for masājid to reopen to provide this service.

After having contacted a number of these organisations yesterday and checked their websites and official social media output, I could not find any guidance on the legal liabilities of mosque trustees.[3] As mosques in the UK operate as charities run by a charitable trust, they are governed by charity law. Therefore, it is imperative that national and local guidance reflect on this missing dimension when taking the decision whether to provide ghusl services to those of your community who have passed away with COVID-19.

These are six considerations that should be carefully thought through before taking on ghusl services in these circumstances:

1. As a mosque trustee, you would be allowing your premises to be used for a known public health hazard by staff, the public and volunteers. Even with appropriate personal protective equipment (PPE) — it remains a health hazard. Consider that ongoing hazards remain for those conducting funerals of COVID-19 victims (this includes live person-to-person transmission too). For instance, on 1 April, the Muslim funeral service, Gardens of Peace, announced on Facebook that some staff members had become infected with the virus.[4]

2. As a mosque trustee, would you be confident in taking up legal liability when the government has strongly advised against coming into close contact with the deceased as there is a “small but real risk” of contracting the COVID-19 virus?[5] In saying this on 31 March, the government has negated any of its legal liability in this matter. Are you able to adhere to the stringent protocols needed to mitigate that risk in a short period of time? Will you be able to acquire the correct PPE equipment at this late stage? Consider that some in the professional funeral industry have called the guidance inadequate to managing infection risks to its staff and members of the public, including practicalities such as being unable to procure the correct PPE equipment.[6]

3. As a mosque trustee, have you considered that, in offering a ghusl service at this late stage, in the coming weeks your volunteers and staff could be exposed to a heavy viral load, given that the number of COVID-19 victims is due to rise? Even with adequate PPE and training, this would not diminish your duty of care as a mosque trustee.

4. As a mosque trustee, are you aware that a valid legal waiver may not or is unlikely to stand up in a Charity Commission investigation if signed by a volunteer or staff member? So if someone contracts COVID-19 on your premises and takes it back home, and either dies themselves or passes it on to a member of their family who dies, then you could face a potential claim of negligence.

5. As a responsible mosque trustee, why would you even want a volunteer to sign away their legal rights when it is your responsibility to do a proper risk assessment and assume you have legal responsibility for managing a known public health risk?

6. As a mosque trustee, are you aware that there is a religious difference of opinion on the necessity of ghusl among UK muftis? Some have said that if risks cannot be mitigated then performing masah over the sealed body bag is sufficient.[7]

Consider the bigger picture. Today the BBC is reporting that some NHS frontline staff trying to save lives have been reduced to wearing bin bags.[8]

Consider too that there are alternative arrangements that have been made.

Khizra Mosque in Manchester M8 made an arrangement for ghusl and shrouding to be performed at the North Manchester General Hospital by “fully trained personnel at the hospital wearing protective clothing/equipment”. No-one outside of this trained team can take part in the ghusl or shrouding. The body is placed in a waterproof bag and sealed, and then put in a coffin and sealed again. The body is transferred directly to the mortuary.[9]

Another is a partnership between Green Lane Mosque, Birmingham Central Mosque and Central Funeral Services. “Bodies are no longer washed and shrouded as usual — instead they are collected by casket at the hospital, sealed and brought to the mosque — where they will be stored until a burial slot is available. … Green Lane Mosque has installed a 12 metre (40ft) refrigerated shipping container in the car park to store those who have died after contracting COVID-19. … The Mosque does have a mortuary inside, but only non-COVID-19 cases are allowed in. The volunteers at the Mosque are no longer carrying out the ritual of washing the body of a COVID-19 patient before the burial for health and safety reasons.”[10]

Another example is a well-established organisation, the Preston Muslim Burial Society (PMBS); in this case, it was a well-established, pre-existing organisation with the training and experience to hit the ground running when it came to responding to this crisis (but it is at the leading edge of such provision among the British Muslim communities). It had agreed and publicised an established COVID-19 ghusl and burial protocol by 30 March 2020 with the local council and local health officials. The body of the deceased is handled through the various stages by separate dedicated teams (see graphic below) that are not allowed to overlap in personnel, and there are strict protocols governing their interaction. PMBS collects the deceased from the hospital and exclusively uses two (out of 13 pre-existing) local mortuaries that have been fully risk assessed and approved by local health officials. Ghusl is carried out by a separate trained and dedicated team (only one family member can observe if strict preconditions and protocols are adhered to). Separate dedicated and trained teams carry out collection/transportation, ghusl and shrouding (kafn), disinfecting of the mortuary, and burial. The whole process has been scrutinized and approved by health officials.

Separate dedicated teams of trained volunteers manage the process for ghusl, shrouding and burial of COVID-19 victims for Preston Muslim Burial Society.

PMBS is a private limited company, incorporated in 1997 and serving the local community since then. It does not charge for its services; the ghusl and shrouding (kafn) are offered free of charge. The only cost is the standard burial charge in the graveyard, the norm for a burial in a public cemetery. At the moment that is £1300 in Preston and in some nearby Lancashire towns. The only additional cost during the COVID-19 Pandemic is £150 for the coffin, which is a mandatory health and safety measure. There is a fund available to assist families experiencing any sort of financial hardship.

Notes

All URLs live as of 5 April 2020; they may subsequently change or be removed but this post will not be updated to reflect that, so it should be considered as correct at the time of publication.

[1a] The appeal by Faith Associates made on 5 April 2020 can be found on its website, and was also circulated through its WhatsApp group: http://faithassociates.co.uk/2020/04/04/ghusal-burial-champions-volunteer-now-urgent-call

[1b] https://youtu.be/mLl8hxmXiJ0, Mufti Abdur Rahman Mangera, 3 April 2020, and this video was later promoted on social media by BBSI. For another video see, https://www.facebook.com/145643265598849/posts/1549110948585400/?sfnsn=scwspwa&d=w&vh=e&extid=3lpfMxjGk8eAMU8A, Sheikh Abu Eesa Nimatullah, 3 April, demonstrating ghusl (using a dummy) of a COVID-19 victim.

[2] https://www.bbc.co.uk/news/uk-england-manchester-52121995, BBC News, 1 April 2020.

[3] http://nbc.org.uk/wp-content/uploads/2020/03/NBC-Guideline-COVID19-V1.06.pdf, National Burial Council, 16 March 2020; https://mcb.org.uk/mcb-updates/coronavirus-guidance-for-mosques-and-madrassas/#funeral, Muslim Council of Britain, 30 March 2020, links to NBC guidance of 16 March 2020; https://www.youtube.com/watch?v=ufaGMmDX0TE, MCB briefing, 30 March 2020, BIMA advice is confined to explaining how either method, ghusl or non-ghusl, can be made medically safe, and adds that medical expert opinion will understandably vary in assessing the level of risk from the infected deceased to the living because this is a new virus being encountered for the first time.

[4] https://www.facebook.com/gardensofpeace/posts/2874574699290846?__xts__[0]=68.ARB-KyH98sLEinhK0z8atqf_Ev0ZeD8jxaUXbAeQv-a9p9NMw-X2Z73JQY-ws1gV-0393hVBGXHsnaMK-ksZAcFLnZtVbCmYvWhadUBBpV1-SVz6TudOnTcFhQvPPDzaf8F2y_89xV1ik70d9VHShjjmTd1nXVxCJyCppGKR--W-DjYSWidvQ-exLJxMxoFcM51YNkYVeynfeYNdzrzBY6pqFTsShF5_qm_DFr3hvFXgdB1Z02GMj8q06dLA2uscMOPq9YhWkZ4kDwglRsH8hAaIO894z2gSUCpAZw8YXrnQ5dtCfbLvF8Y2V_Domv26SX0OzWkcCCo088SIbpQdBg&__tn__=-R, Gardens of Peace Facebook Page, 1 April 2020.

[5] https://www.gov.uk/government/news/new-advice-for-safe-funerals-after-discussions-with-faith-leaders, 31 March 2020. The relevant paragraph reads as follows: “In addition, the guidance advises that since there is a small but real risk of transmission from the body of a deceased person, mourners are strongly advised not to take part in any rituals or practices that bring them into close contact with the body of a person who has died from or with symptoms of COVID-19. Practices that involve close personal contact with the deceased should only be carried out using the correct personal protective equipment (PPE).” Also, https://www.rcpath.org/uploads/assets/0b7d77fa-b385-4c60-b47dde930477494b/G200-TBPs-Guidance-for-care-of-deceased-during-COVID-19-pandemic.pdf, 19 March 2020.

[6] https://www.politico.eu/article/coronavirus-causes-crisis-in-funeral-sector-when-the-body-bags-run-out-we-will-close-warns-uk-funeral-director/, 26 March 2020.

[7] https://alsalam.ac.uk/washing-the-deceased-from-covid-19/, Sheikh Muhammad Akram Nadwi, n.d.; https://m.facebook.com/story.php?story_fbid=2995301630492193&id=161361660552885; Sheikh Abdullah al-Judai, Leeds Grand Mosque Facebook Group [fatwa in Arabic].

[8] https://www.bbc.co.uk/news/health-52145140, BBC News, 5 April 2020.

[9] Advice note 1.1., last updated 29 March 2020; the mosque management warns that this advice may change.

[10] https://www.itv.com/news/central/2020-04-01/mosques-prepare-to-store-extra-bodies-with-changes-to-burial-rituals/ and https://www.itv.com/news/2020-04-01/how-the-west-midlands-is-pulling-together-during-the-coronavirus-crisis/, ITV News, 1 April 2020. There is a little bit of a discrepancy between the two reports in aspects of this arrangement. Direct contact with the organisations named in this example would no doubt clear this up.

Community historian of British Muslim life