Should therapy notes be used in court?
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What recent events have brought therapy notes in court to public attention?
Now, the use of therapy notes in court has once again come to the forefront. The Irish Examiner is reporting this morning that Gardaí have been criticised after seizing notes from a therapist's home of a woman who reported she had been sexually assaulted. Advocacy groups have long been calling for a ban on the practice of note use in sexual offences trials. I'm joined on the line by Barbara Kelly. psychotherapist and founder of Therapists Against Harm and by Nolene Blackwell, former CEO of the Dublin Rape Crisis Centre. Good morning to you both. Barbara, I might start with you. For anyone who isn't aware, how does the system work at the moment?
So currently and since there have been some amendments made in 2017 how the system generally works is if a client or should I say if a survivor presents at a Garda station and makes a statement there's certain protocol that has to happen obviously from that point But regarding their counselling notes, again, there are certain protocols that have to happen. So it's not a given that counselling notes would be used. So there's a certain process that has to go through.
Okay. And is that something that a therapist and a client should have maybe had a conversation about early on, how notes could end up being used?
Yeah, so during the intake session, generally, when a therapist would meet a client for the first time, they will go through certain limitations regarding confidentiality. And that would absolutely be one of them that would be explained to a client. However, during the first intake session, I'll be quite honest with you, generally, clients are extremely overwhelmed. So I don't think always they're taking everything in.
Right. And I mean, if clients realise that notes could end up being used in court, will be seen by the defence side. I mean, can they ask a therapist not to take notes?
So this is something that has been asked repeatedly now. Firstly, the fact that many clients aren't even aware that this process can happen. Secondly, a lot of therapists aren't even fully aware of the ins and outs of what this process entails. But absolutely, if a client attends during particularly the beginning session, if they say, I do not want session notes to be kept on me. They have an absolute right to do to say that. And to be quite honest with you now, many therapists, because of, you know, obviously what's going on in the media and being aware, a lot of therapists have actually decided not to keep counselling notes. However, there are problems still existing around that.
Yeah, well, I imagine it would make the therapist's job quite difficult.
This is it, you know, and the purpose of keeping those notes is very much about keeping a record and tracking, you know, emotional changes and cognitive distortions.
How does the current system handle the use of therapy notes in legal proceedings?
Like, you know, they're really therapists generally will be keeping those notes to try to keep track of patterns regarding emotions and thoughts.
Right. And a survivor, can a survivor refuse to give notes to a Gardaí?
So again, this is where things get a little bit complicated. So firstly, a person going and making a statement to the Gardaí regarding being victimised, they will at that point be asked about different services that they're linked in with, and one of those would be around counselling. So once they disclose to the Gardaí, usually at the early stages, that they are linked in with a counsellor, that is usually when the ball starts to roll. So even at that point, if they say, and I do not want my counselling notes to be accessed, unfortunately, there is a process that can happen whereby, you know, if it is deemed that there is potential, and now this is again where therapists against harm have major issues, that sometimes it can be deemed that there may be some evidence held within those counselling notes or even the potential of evidence being held
And that's where then that even if the client doesn't give their consent, it may there may be an end result where they those notes could still be subpoenaed.
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