Duty of care | Channel 4

Key points

Channel 4 takes duty of care very seriously and adopts a bespoke approach.
Additional duty of care considerations are required when working with vulnerable adults and under-18s.
We also have a duty of care to our viewers.
Please discuss your content’s duty of care requirements with your commissioning editor and your Legal & Compliance contact as early as possible.

Watch the e-module

E-module: Duty of care

What is your duty of care as a content maker?

Introduction

Channel 4 takes the duty of care towards its contributors (which includes contributors, presenters, on-screen talent and production staff) very seriously, and these guidelines, read in conjunction with the relevant sections of the Ofcom Code and Guidance, should be applied to all Channel 4 content - including original and branded content for social media platforms.

Channel 4 adopts a bespoke approach to duty of care.

At the point of commission, a discussion should be had with the commissioning editor and, if necessary, Channel 4’s content lawyer/compliance advisor to discuss any duty of care considerations and whether a duty of care risk assessment document and/or protocol is required.

If so, it must be specific, tailored for the content, and prepared at the earliest stage of production. You will need to submit and discuss it with the commissioning editor and the content lawyer/compliance advisor to ensure that contributor care has been properly considered and addressed.

Please remember that duty of care considerations should evolve with the production and be continuously reassessed as production continues and changes.

You may also find it helpful to refer to our e-modules on factual programming

Duty of care requirements in the Ofcom Broadcasting Code and Guidance

The Ofcom Broadcasting Code (“the Code”) and Guidance duty of care provisions are set out here. These ensure that:

the welfare of participants in content is protected.
audiences are protected from uncontextualised offence that can arise from seeing or hearing vulnerable participants in content whose welfare they think might not have been protected.

These rules reflect the broader fairness requirement in Section 7 of the Ofcom Code, which is to ensure prevention of unjust or unfair treatment of individuals or organisations in content.

Section 7.3 relates to informed consent. Where a person is invited to make a contribution to content (except when the subject matter is trivial or their participation minor) they should normally, at an appropriate stage be informed about:

potential risks arising from their participation which may affect their welfare (insofar as these can be reasonably anticipated at the time).
any steps Channel 4 and/or the content creator intends to take to mitigate these.

Background checks

Key points

Background checks may be necessary for the protection of contributors themselves, or for the contributors they interact with.
Checks may include psychological assessments, DBS checks and other types of research.
Specific rules apply when working with under-18s.

Introduction

In certain circumstances it may be necessary to undertake appropriate background checks on contributors, e.g., press and social media searches. It may also be necessary to provide more detailed checks with the contributors’ consent, e.g., criminal records check or GP’s letters, for both their and other contributors' safety.

These should be discussed with your commissioning editor and content lawyer/compliance advisor, along with the issue of whether 'after care' may be appropriate.

It may be necessary, depending on the individual, the nature and extent of their proposed contribution and the nature of the content being filmed, to seek advice from an experienced and appropriately qualified and independent mental health or psychological expert (such as a psychologist) as appropriate. This may be necessary in order to assess the person’s suitability to participate in filming, the likely impact on them of their participation and/or to advise on how they should be interviewed or filmed.

You should discuss whether an independent expert is required with your commissioning editor and content lawyer/compliance advisor at an early stage.

If it is considered that a psychological assessment is necessary, the parameters of this should be discussed with the commissioning editor and content lawyer/compliance advisor in advance, such as whether an assessment in person, by telephone or virtually is required and the experience of the relevant expert.

The commissioning editor and content lawyer/compliance advisor may request to see the psychological assessment, which should be sent securely in a password-protected confidential format, and given the data requested will be sensitive personal data, all data handled should be in accordance with the Data Protection Act.

If the expert advises that a contributor should not be used then this decision must be adhered to.

If the expert advises that you can 'proceed with caution', this must be brought to the attention of the commissioning editor and content lawyer/compliance advisor. The psychological assessment should be disclosed to the commissioning editor and content lawyer/compliance advisor so they are fully aware of the issues and any guidance the expert has given.

Consideration should also be given as to the need to retain the same expert throughout the production to contribute to ongoing risk assessment and where appropriate in terms of providing any after-care.

Any advice given by the expert must be followed and discussed with the commissioning editor and content lawyer/compliance advisor. Any significant changes by the expert in their advice or any significant departure in following their advice must be brought to the attention of the commissioning editor and content lawyer/compliance advisor.

Disclosure and Barring Service (DBS) guidelines

These guidelines set out an overview of the Disclosure and Barring Service (DBS) checks (formerly CRB checks).

There are times when you need to know further background on your contributors or crew, for example if they are working with children or vulnerable adults or if you are putting contributors in close proximity with each other. We have a duty of care to all our contributors to make sure they are safe, in particular vulnerable contributors or those under 18.

Changes to the Rehabilitation of Offenders Act 1974 (as amended by the Legal Aid and Sentencing and Punishment of Offenders Act 2012) have made it harder to find out someone’s old or minor convictions. This means you may be unable to find out if someone is, for example, on the Sex Offenders Register or had a spent conviction for theft before including them in your content.

TYPES OF DBS CHECK

Basic checks: These can be requested for any role. A basic check will show all unspent convictions and conditional cautions. It will not highlight spent convictions or someone being on a Barred List like the Sex Offenders’ Register. Due to changes to the Rehabilitation of Offenders Act, the length of time for a conviction or caution to be spent has been reduced. For adults, if a custodial sentence was less than 6 months, it is now spent after 2 years after the sentence is completed. Custodial sentences of 6 months–2.5 years are spent after 4 years, and custodial sentences of 2.5–4 years are spent after 7 years. Sentences over 4 years are never spent. Disclosure and Barring Service, Disclosure Scotland or Access NI will process applications.
Standard checks: These are suitable for eligible roles that involve regular regulated activity with children or vulnerable groups or specific positions such as traffic wardens or probation officers. It will show any unspent convictions, cautions, warnings or reprimands along with any spent convictions and cautions that are not eligible for filtering.
Enhanced checks: These are suitable for eligible roles that involve regular regulated activity with children or vulnerable groups. It will show any unspent convictions, cautions, warnings or reprimands along with any spent convictions and cautions that are not eligible for filtering. Intelligence held by the police may also be included if the Police “reasonably believe it is pertinent to a recruitment decision”.
Enhanced with DBS Barred List checks: These are suitable for eligible roles that involve regular regulated activity with children or vulnerable groups. It will show the same information as an enhanced check along with any information held on the barred list(s) being checked. The Sex Offenders’ Register, i.e. Protection of Children Act List (PoCA) and/or Protection of Vulnerable Adults (PoVA), will fall under these lists.

Checks should take between 2–4 weeks but could take up to 3 months during busy periods such as when teachers are newly enrolled. DBS checks are unavailable for those under 16.

Activities must be regulated, regular and day to day. The DBS guidance says that regulated activity with children (i.e. caring for or supervising a child) that is unsupervised must be “carried out by the same person frequently (once a week or more often), or on 4 or more days in a 30-day period or overnight.”

FILTERING OF CONVICTIONS AND CAUTIONS

"Filtering" is the process the DBS use to determine whether information should be removed from a person's DBS certificate:

If over 18 at the time of the offence, a conviction will be filtered 11 years after the date of the conviction, and a caution 6 years after the date of the caution, provided that the applicant did not go to prison, has not committed any other offence and the offence was not of a violent or sexual nature.

If under 18 at the time of the offence, a conviction will be filtered 5.5 years after the date of the conviction, and a caution 2 years after the date of the caution, provided that the applicant did not go to prison, has not committed any other offence and the offence was not of a violent or sexual nature.

Subject access requests

Section 184 of the Data Protection Act 2018 makes it a criminal offence to ask someone you wish to employ or contract with to provide you services (which would cover crew and contributors) to get a subject access request and reveal it. This would include a request to the police for their criminal record, including “spent” convictions.

Other ways to find out a person’s background

Ask contributors and crew to self-disclose spent and unspent convictions, cautions, warnings or reprimands, or being on a barred list.
Do a general internet and LexisNexis background check.
Apply for a basic disclosure check from the Disclosure and Barring Service, Disclosure Scotland or AccessNI.
Ensure anyone without a standard or enhanced DBS check is not left unsupervised around children or vulnerable people.

Rules for supporting artists (SAs) working with children

Since 2016, an additional measure to protect under-18s has been applied by PACT and the BBC, Channel 4, Channel 5, ITV and Sky. As well as the normal safeguarding guidelines, protocols and codes of conduct that each broadcaster has in place, all supporting artists (SAs) who work on productions involving under-18s must obtain a basic disclosure certificate which shows the SA has no unspent convictions for offences contained within the Sexual Offences Act 2003.

Content creators should inform agencies if a production involves under-18s – this includes any content that might engage an under-18 at any stage in the production in speaking or non-speaking roles. Certificates can be obtained from the Disclosure and Barring Service (England & Wales), Disclosure Scotland (Scotland) or Access NI (Northern Ireland) and a new certificate must be provided every 18 months and shown to the SAS Agent. The content creator and Channel 4 may also request to see the certificate. If within that period an SA is convicted of an offence under the Sexual Offences Act 2003, the SA's agent will need to be informed and the SA will be unable to work on any production involving under-18s. A record should be kept confirming that the SA has no unspent convictions for offences under the Sexual Offences Act 2003.

Regular cast and crew on productions involving children are also required to have the requisite criminal checks, and children must be chaperoned at all times.

PACT and the BBC, Channel 4, Channel 5, ITV and Sky have produced an FAQ document which can be found here.

Background checks on under-18s

When considering an under-18 person as a participant, it is essential that content creators ensure that appropriate background checks are made to assess their suitability.

Clearly what is appropriate will depend on the nature and subject matter of the content and the level of participation expected of the person under 18. For example, an observational documentary in a school might not require the same level of checks as a formatted series, where children are placed in a new residential environment by producers.

A number of other factors may also be relevant, including the age, gender, maturity, cultural, ethnic and religious background of the person under 18 as well as their personal circumstances and previous life experiences.

Content creators should discuss and agree with the commissioning editor and content lawyer/compliance advisor the appropriate checks to be carried out in advance.

These might typically include the following (subject to the child's and parents' consent as appropriate):

Contacting and consulting with the under-18's GP.
Contacting and consulting with the under-18's school/college.
Contacting and consulting with any mentor or similar person (including members of the contributor's wider family, e.g. grandparents)
Possibly contacting and consulting with the leaders of any youth or other social/recreational groups the under-18 is a member of/associated with.
Depending on the circumstances of the particular person under 18 and/or the nature of the content being made, consideration may need to be given as to whether any additional investigations into their suitability should be made – for example, by an appropriate expert such as a child or educational psychologist.

If content creators find out (or have reason to believe) that the under-18 or their family is known to (or likely to be known to) social services, or is on the local authority's child protection ("at risk") register, or is involved in court proceedings of any kind (whether civil/family or criminal and whether as a party, defendant or witness) it is vital that advice is sought from the content lawyer/compliance advisor as soon as possible.

Content creators should keep a documented trail of relevant checks, correspondence and any concerns raised throughout the production.

Under-18s in programmes

Due care must be taken over the welfare and dignity of people under 18 taking part in programmes, irrespective of their parents' consent.

People under 18 should not be caused unjustified distress or anxiety by their involvement in content or by their broadcast/publication.

Prizes in children's competitions must be appropriate to the age range of both the target audience and participants.

Working with vulnerable people

“Vulnerable People” are defined by Ofcom in 8.22 of the Code as follows: “This varies, but may include those with learning difficulties, those with mental health problems, the bereaved, people with brain damage or forms of dementia, people who have been traumatised or who are sick or terminally ill.”

A risk assessment should be conducted to identify any risk of significant harm to the contributor, unless it is justified in the public interest not to do so.

The level of care due to the contributor will be proportionate to the level of risk associated with their participation in the content.

Duty of care and contributors

There is no ‘one-size-fits-all’ approach to offering contributors support before, during, and after filming. Duty of care towards contributors involves considering the contributors and their specific needs, for example based on their medical background or family circumstances, as well as potential issues which may arise during filming based on the content itself, such as mental or physical wellbeing.

If you are dealing with contributors, you must take a bespoke and flexible approach to contributor care tailored to the specific contributor. Any duty of care concerns you do have should be discussed with your content lawyer/compliance advisor.

We have a duty of care to all our contributors, in particular vulnerable contributors or those under 18.

Writing a risk assessment

Ofcom has published a risk matrix example for contributors, which can be found on pages 6-10 of this link.

Any risk assessment must identify and assess risks at the outset, in order to determine whether content is high/medium/low risk and include what steps (if any) will be in place to mitigate potential risks to contributors before, during and after production.

Content creators may wish to use Ofcom’s suggested risk matrix (see below), as a tool for identifying, assessing, and managing potential risks to contributors in addition to considering the following points:

Guidelines and procedures: In some cases, content creators may need to create a separate duty of care protocol or include a duty of care section within an overarching production protocol which sets out the key considerations for working with contributors in particular content.

The duty of care protocol and/or relevant section of the production protocol should be submitted and discussed with the commissioning editor and your content lawyer/compliance advisor.

Record keeping: Making and retaining records, contemporaneous notes, and/or any other documentation can help demonstrate what information and support was offered and provided to a contributor during production.
Experts: Independent expert advice may need to be sought from an appropriately qualified specialist, such as to assess potential vulnerabilities of contributors. Depending on the nature of the production, different specialists may be required at different stages.
Steps to manage the welfare of contributors: Where appropriate and possible and with regard to staff welfare, contributors could be given a nominated single point of contact within the production team with whom they can liaise throughout and after the production process. Content creators should be flexible as to the type of support a contributor might reasonably require or request before, during and/or after production.

Duty of care and viewers

Content creators must provide adequate protection for members of the public from the inclusion of potentially harmful or offensive material. This can include the treatment of people who take part in content especially if the viewer is concerned that they appear to have been put at risk of significant harm.

This means ensuring that material which may cause offence is justified by the context. If necessary, appropriate information or context should be broadcast/published where it would assist in avoiding or minimising potential viewer concerns. This may require adding footage that provides context, voice over, published warnings and/or support information.

Key points

Watch the e-module

E-module: Duty of care

Introduction

Duty of care requirements in the Ofcom Broadcasting Code and Guidance

Background checks

Key points

Introduction

Disclosure and Barring Service (DBS) guidelines

TYPES OF DBS CHECK

FILTERING OF CONVICTIONS AND CAUTIONS

Subject access requests

Other ways to find out a person’s background

Rules for supporting artists (SAs) working with children

Background checks on under-18s

Under-18s in programmes

Working with vulnerable people

Duty of care and contributors

Writing a risk assessment

Duty of care and viewers

Related links