Who Gives Informed Consent?
In this article
In effect every consent needs to be tailor-made according to the individual circumstances of the contributor and contribution. However, to provide advice on approaching consent with contributors (who is required to give consent, how much information they should be given and the form it should take) it is useful to divide them into the following categories:
- unrecruited participants
- recruited participants
- third parties.
Unrecruited Participants are those who not been invited to take part in our output; they are individuals caught up without warning in the production process, for example during observational documentary making.
The requirement for consent is a judgement that balances the individual's legitimate expection of privacy (See Section 6 Privacy: Introduction) with the need to report in the public interest. On the one hand, consent need not normally be sought if the material is gathered in a public place and an individual is merely incidental or illustrative and not-named. On the other hand, some situations are more likely to require fully informed consent, for example when an identifiable member of the public is shown receiving medical treatment.
Between these extremes lies a range of scenarios where the requirement for consent and the information that should be given will vary, depending on the significance of the contributor, the nature of the action taking place and the degree to which the location is public or private.
Note that people recorded committing an offence or admitting to an offence, or behaving or admitting to behaving in an anti-social manner will not normally be asked for consent. We would also normally reveal their identity although there are circumstances when it is important not to do so.
The following considerations can help when assessing the requirement for consent, whether it should be expressed or may be implied, and the level of information required.
- Is the behaviour essentially public and the recording or filming for broadcast apparent?
- Is the behaviour private although occurring in a public place? For example, receiving medical treatment.
- Is the person in a state of distress?
- Is the person becoming actively involved in the filming and interacting with the microphone or camera?
- Is the person acting in an anti-social or criminal way?
- Does the producer have enough information to represent that person's actions fairly in the finished programme?
- Is the person going to be ridiculed or humiliated?
Recruited Participants are those who have been invited to take part in our programmes in advance of making their contribution and who are not responsible for criminal or anti-social behaviour which we are exposing in the public interest.
It is helpful to consider Recruited Participants in three categories:
1. The Straightforward Contributor.
This is someone whose contribution is not of a sensitive or controversial nature and is unlikely to have long-term impact on their lives. For example, someone bringing an antique for valuation on Antiques Roadshow, a minor interviewee in a documentary on a non-sensitive subjector a contributor to The Food Programme on Radio Four.
When inviting these contributors we should normally give a brief description of the programme or website, its title (if available) and when we anticipate it will be transmitted.
Also, we should normally be sure the contributor is clear about the following:
- the kind of contribution they are expected to make. They should be aware in advance about the range of views being represented in the specific content to which they are contributing and, wherever possible, the names of other likely contributors
- whether their contribution will be live or recorded and/or edited. When recorded, we should not guarantee it will be broadcast
- we can only give a broad outline of question areas because the direction the interview takes will be dependent on what is said
- the final content will be a fair and truthful representation of what they say and do
- their contribution may be used by other BBC outlets including reproduction and archiving online
- we do not normally allow a preview of BBC content
- their contractual rights and obligations and those of the BBC in relation to their contribution. For example, we expect contributors to be honest, straightforward and truthful.
2. The Collaborative Contributor
This is someone who is central to the programme and involved in a collaborative fashion. This includes, for example, contributors to some constructed reality programmes, makeover programmes and observational documentaries. Gaining consent will often be the result of a dialogue over time, allowing a relationship to be built between programme maker and participant. It is advisable to keep a contemporaneous note of any discussions and to follow up verbal information or assurances with a letter, email etc.
Even though the relationship may evolve, properly informed consent still needs to be gained; if significant information is not made available to the contributor before they begin participating, they may have grounds to withdraw their consent at a later stage in the production process and after significant costs have been incurred.
(See below: Withdrawal of Informed Consent)
In addition to giving the basic information outlined for "straightforward contributors", it may be appropriate to raise the following issues with collaborative contributors:
- the likely time commitment, impact on their daily lives and the production team's expectations of filming activities and access.
- the need for the contributor to consider the consequences of taking part, post transmission, for themselves and, if relevant, their families.
We do not normally allow contributors a preview of BBC content, however it is sometimes appropriate to do so with an exceptional collaborative contribution - for editorial, ethical or legal reasons. When a preview is offered, we must be able to demonstrate the terms under which it was granted. It is normally best to do this in writing in advance. We should make it clear that we are not surrendering editorial control and that any changes made as a result will generally only relate to the correction of agreed factual inaccuracies or for reasonable concerns about the welfare of children, personal safety, or national security.
We may ask collaborative contributors to sign a contract which formalises the terms of their dealings with us, and includes a declaration of personal information which may bring the BBC into disrepute (for example, criminal convictions) or which may involve possible conflicts of interest.
Alternatively, if the contributor is providing significant access, they may require the production team to enter into an access agreement. The terms of an access agreement must not compromise the BBC's editorial control or otherwise undermine our editorial integrity. Any access, filming or recording agreement must be referred to a senior editorial figure, or for independents to the commissioning editor, who may also consult Editorial Policy particularly when the proposed wording compromises the BBC's editorial independence or has the potential to cede editorial control to a contributor or contributing organisation.
3. The Vulnerable Contributor
Some contributors may have special needs to take into consideration, for example children, older people, those with mental illness, learning disabilities or other cognitive impairment (such as sickness or other physical or emotional conditions that render the individual unable to think clearly, either temporarily or permanently).
Other contributors may become vulnerable by revealing distressing or intimate information. These contributors need all the information given to collaborative contributors but as part of the consent procedure it is also necessary to:
- Consider if the person has the capacity to give properly informed consent.
- Discuss potential consequences in detail (including the possibility of greater media interest or other public scrutiny following the broadcast), keeping a contemporaneous note of conversations.
- Assume more responsibility for the contributor's welfare, to the extent that it might be affected by taking part; that may include offering help and reassurance up to the point of transmission and beyond.
- Consider including family or friends in the negotiations.
- Engage professional expert opinion, where appropriate
Some observational formats involve contributors displaying their vulnerabilities, personalities and emotions through their thoughts and actions. This may leave them open to local gossip or even, occasionally, the public scrutiny of their character and behaviour in the pages of national newspapers or on Internet message boards and blogs. Such contributors may be psychologically vulnerable. When recruiting these contributors it may be necessary to have them assessed to ensure they are sufficiently psychologically robust to cope with the experience.
Third Parties are individuals who are not contributors to a programme but are nevertheless being discussed, referred to or otherwise appearing in material. We should be fair and accurate in our portrayal of these people and, where appropriate, respect their legitimate expectations of privacy. The following questions can help determine whether it is necessary to notify or seek their consent.
- Is the material revealing private information about a third party?
- Does the content involve a sensitive or controversial subject?
- What are the motives behind a participant's reference to a third party?
- Could the way in which the third party is presented damage their reputation or cause emotional distress to an innocent party? (Consider that, within relationships, there may be sharply contrasting viewpoints and you may be hearing only one side of the story.)
- Can the account about a third party be corroborated?
- Is the third party responsible for any wrongdoing?
Withdrawal of Informed Consent
Generally, no contributor who has given properly informed consent has the right to withdraw it.
However, that does not mean we should simply disregard requests to withdraw from our output. Just because we have the right to use a contribution does not always mean that it is appropriate to do so - particularly when we are dealing with contributors already known to be vulnerable. We should normally invite the contributor to explain their concerns and then give them due consideration, taking account of the likely consequences. We should also consider whether there has been a significant change in the circumstances of the programme or the contributor which would have affected their decision to participate had it been known at the time.
Nevertheless, where informed consent has been properly obtained, we should protect our rights to use the material. Our ability to make programmes and other content depend on a clear and binding consent process. On the rare occasions when a contributor's request to withdraw consent is granted, we should be clear of the specific and distinct circumstances that have made withdrawal appropriate.