Melissa Laing: Negotiating Consent

As artists have increasingly moved towards research based, documentary and participatory practices the question of consent has become one we must grapple with. Both in terms of what constitutes consent, and how it might best be negotiated. Ideally consent processes are ways to recognise the autonomy of individuals and communities and their right to choose to participate or not. They can range from a one off contractual process where the participant is provided with sufficient information to decide if they want to participate and makes a clear affirmation of their decision to ongoing collaborative processes where the power of shaping the research and its outcomes is shared with the participants.

At the heart of the idea of consent is an issue of power and where it resides, particularly who gets to decide what is done and how it is done, from the initial framing of the research to its final culmination. One of the main ways ethical practice and human participation has been framed arises from a history of gross human rights abuses and disregard for the risk to life and wellbeing in medical research. In New Zealand as late as 1987 experimental research into cancer treatments was conducted at the National Women’s Hospital in Auckland without the consent of the women whose bodies it involved. While the potential harms of medical research are obvious the social harms of anthropological and sociological practices are equally important and our nuanced understanding of them comes from assertions of individual and community rights against exploitative research practices and feminist and post-colonial critiques of structural power.

According to the ESRC National Centre for Research Methods in England approaches to formal research have been developed in which ethical decisions are made on the basis of the consequences or outcomes of research participation, on the rights of individuals or on the basis of moral principles. These incorporate ideas about the individual’s right to be respected, protected from harm and chose if they want to participate, as well as expectations that the research should benefit others (not just the researcher), that all participants are treated equally, and that information gained is represented accurately.

This conception of an ethical process is productive for artists to engage with whether they choose to use a formal consent process or not. In effect the approach requires asking yourself at the outset of the project:

  • Who could I hurt with this project, recognising that harms can be physical, psychological, social and cultural?
  • How might that harm manifest itself to the individual participants, to me, to the communities they and I am involved in, as well as the profession?
  • How might I mitigate or eliminate these harms?
  • How do I inform the participants of these risks?
  • And is there any benefit to them in participating?

It is also important to ask yourself by what right do I have to make decisions about these harms, and how do I counter balance my interest in realising the project against the interests of others.

Embedded within the structure of a lot of research involving humans is a distinct divide between the researcher and those researched, and an understanding that the researcher (or in our case artist) has the sole authorial and authoritative voice over what is done with the material or knowledge collected within the parameters they have identified. The formal ethics process that has developed in response to this presumes that the researchers have a bounded research question and method and are therefore able to map potential harms to the individual, community and researcher in advance and provide an explicit document outlining the project intentions, outcomes, risks and vested interests to participants, containing sufficient detail to enable informed consent.

In the arts this is an approach which can most easily be undertaken in association with documentary or interview based projects, where the desired outcome is known: a film, podcast, series of photos, or theatre script. Or participatory projects which work to a defined script or event score where a certain amount of advance information does not compromise the work. As an approach it has a certain type of legalistic or contract based form, whereby participants are given documents defining the scope of the project and in return sign forms affirming their understanding of the project and authorising the use of what is gathered from them or consent to the project as outlined through mechanisms such as acquiring a ticket.

There are a multitude of exemplar forms available online, from model release forms and oral history agreements to forms developed by university ethics committees. They range from a commercial style contract which releases all rights in exchange for payment to non-commercial agreements which often specify the researcher or artist’s commitments to the participant such as preserving their privacy, storing research material, and right of withdrawal or review of material and its use. These provisions reflect our legislation which requires that regulations around privacy and data protection, human rights, and competency to give consent are adhered to. Questions such:

  • What information is the participant agreeing to make public?
  • If I am collecting sensitive information do I need to secure it or de-identify it?
  • Do I have a way for participants to withdraw or review material?
  • What will happen with the source material collected after I am done?

While a default assumption may be that what is collected remains yours to make more work from, there are other approaches. Consent may have been given to use film or recording of an individual for one purpose only meaning that reuse must be negotiated each time. For example the deposit contracts of Ngā Taonga (formerly the Film Archive) refer to the principle of mana tuturu or spiritual guardianship which requires consultation for each use, reflecting the specific concerns of Māori, but also signalling an approach which leaves the power of decision with the community not the creator.

From a risk management perspective outlining all of these considerations in a document and obtaining a signed contract provides the most clear cut form of consent. It demonstrates that a consent process was undertaken, clearly defines rights and responsibilities, and ultimately who can be held accountable if they are not met. But many researchers in fields like anthropology or folk history, as well as those who work with marginal communities or children argue that a written document and consent contract creates obstacles to a community participating. Additionally studies have shown participants will often disregard the risks outlined in a consent document, frequently out of a desire to please the researcher. As anthropologist Carolyn Fluehr-Lobban wrote “Informed consent does not necessarily imply or require a particular written or signed form. It is the quality of the consent, not the format, that is relevant.”

Artistic process also does not always lend itself to written and signed consent. Often the outcome or even trajectory of a project is not defined at the outset. Many artists work with communities rather than make work about them, in doing this trying to change the power hierarchy implicit in research practice. In response to such issues the formal consent process becomes more complicated, gradated, constantly renegotiated. This is where dynamic consent processes become integral to practice. Consent is negotiated over the course of the project and updated as it transforms, requiring active sharing, starting with a disclosure of aims. To be effective it also requires a conscious recognition of what power you as the artist hold and what power you are sharing. Where the ‘contractual’ approach provides a clear point at which consent is given, and as such provides security for the researcher/artist that they can use the knowledge they gather, the collaborative or power sharing approach takes longer, is dependent on ongoing trust and transparency and requires the researcher/artist to let go of some or all of their power.

For a lot of us the primary power we hold in the arts is our authorial voice, our determination of what the conceptual integrity of the work is and how it is realised. Making participatory or documentary work with, rather than about a community requires renegotiating our authorial power to make space for the people we are working with, both in the process and in the presentation of the work. Often, where the collaborative approach turns sour for the participants is when the researcher/artist take back the authorial voice at the end of the process claiming the work and its documentation for themselves, leaving the community with only the participatory experience. The failure to recognise co-authorship, either by the artist or by the institution showing the work reveals the sharing of power to be incomplete. While the artist may feel that it is indeed their work as they initiated it and managed the process, the community or individual can feel that the artist ended up taking more than they consented to. This highlights the importance of clearly negotiating how the works authorship with be represented in advance.

On the flip side of this, the community or individual’s power resides in their choice to participate or not, and in what they choose to share. They can choose to withdraw their consent and stop working with the researcher/artist halting the entire process and leaving the researcher/artist with ambiguous rights to knowledge gained and an ethical dilemma about what, if anything they can use. In documentary practices we may be able draw on the journalistic principle of the public interest to help make this decision. But we must be able to determine what is in the public interest and therefore can be used despite refusal of permission and what we merely desire to use as it will make the work better.

Our desire to make the artwork as we conceive it can easily conflict with ethical premises. We can tell ourselves its art, not medical experimentation, therefore the harm will be negligible. As we know much artist practice has involved pushing up against ethical and social boundaries to reveal their edges. The arts as a structure provides us with the power to challenge ethical givens, but does not mean that we should operate unethically because it is art or deny the agency of those we work with. In the end, unless we are employed by research institutions such as universities who have formalised regulations around research ethics, the negotiation of ethical practice comes down to the individual’s construal of their own ethical self in relation to the communities they operate within. We are constantly faced with ethical choices without clear guidelines. By incorporating ethical analysis and consent processes into our research and collaborative practices, we ensure we’ve already considered the issue before it arises and have strategies to deal with it.

Melissa Laing

References

Rose Wiles, Sue Heath, Graham Crow & Vikki Charles (2005) NCRM Methods Review Papers NCRM/001 Informed Consent in Social Research: A Literature Review. Discussion Paper. Unpublished. http://eprints.ncrm.ac.uk/85/ (accessed 4 September, 2014)

Carolyn Fluehr-Lobban, 1998 (2000) ‘Ethics’ in H. Russell Bernard (ed.) Handbook of Methods in Cultural Anthropolgy (Lanhan : Altamira Press) pp 185 – 186. Fluehr-Lobban is referencing the Draft Code 1995 B 3 of the American Anthropological Association.

Image credit: Mark Harvey, Political Climate Wrestle,  The Maldives Exodus Caravan Show   at Venice Biennale, Giardini-Arsenale. Photo: Paolo Rossi