Chapter 1: 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.
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Chapter 2: 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. Right.
OK. Stay with us, Barb, if you can. Noeline, good morning to you. Morning. Why would therapists ever be asked for counselling notes?
Well, because they're the people who are holding these health records. So Barbara has explained really well what happens. But the real issue here for a lot of people is that when they go to a counsellor, they're going to a health specialist. They are not going to the guards at that stage.
And then, however, the law is so lax and so wide at the moment that a client in a therapy session risks their notes being called up by the accused. So at the moment, someone who is accused of a sexual offence may very well ask once they know that there's a therapist involved, they may ask to see the counselling notes.
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Chapter 3: What should clients discuss with therapists regarding the use of their notes?
It is because The victim in these cases traditionally was not trusted by the legal system, so their health notes are handed over. The DPP would never look to see them if they weren't afraid that the defence would try to tear holes in the case by looking at them. The DPP never needs them to strengthen the case and unless...
the defence had looked for them, they would never use them to bolster a case. That's the Garda job. That's the legal job. And that's why the Minister for Justice is proposing a change so that we will switch the balance. Ideally, you would not have counselling, you would not have health records brought into court at all for all the reasons Barbara outlined.
But now it is proposed to reduce that so that there must be a court order before the defence can actually see them. And that will at least reduce the capacity of the defendant to intimidate the client or to intimidate the victim. Because what actually happens is the victim will often say, I don't need them knowing about the rest of my life.
When you go into a health situation, you're not only talking about what's currently bothering you, you're talking about your health history. The same is true for therapy. So it is a real problem and it's used to weaponise court cases, to weaponise the victim, as well as to be used for genuine cases of abuse. ensuring that there's a fair trial. So that's why it's going to be reduced.
Do the defence get access to therapist notes about all aspects of a survivor's life or is it just the relevant portions, if you know what I mean?
It should only be the relevant portions, but once a therapist or a client hands them over, once the victim hands them over to the prosecution, be that to the guard or more often actually to the DPP, but either way, once the therapist hands them over, they are then in the hands of the DPP or the guard, and the guard and the DPP will make it quite clear
to therapists, to victims, to victims' advocates, that they have no say over what is or isn't redacted. They will be reduced. Things will be crossed out. But things will be left in as well. That could be used... You know, because the defendant nearly always knows the accused in sexual offence cases, there could be things that the DPP don't know are private to the victim.
And so they could hand over things that are, but they have complete control over them once they're handed over. At this stage of the law, the new law needs to come in really fast.
Yeah, just you mentioned the issue of a fair trial, and I'm sure defence barristers would make the argument that their client is entitled to the presumption of innocence and all the rest. And if there's any evidence that could bolster their case, they're entitled to have it. What would you say to that argument?
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