Given the confusing headlines in the media, I would not be surprised if many therapists are asking themselves, each other and their supervisors “Are client’s therapy notes confidential now?’’ I think it is understandable and they can be forgiven for not knowing for sure.
The new CPS ’Pre-Trial Therapy’ (PTT) guidance released in 2022 aimed to put a stop to the widespread blanket requests from the police (or CPS) for our clients’ notes (third party material) if they became involved in the Criminal Justice System (CJS) as a ‘victim’ after reporting a crime against them personally – although the crime could have been reported by someone else of course.
What the PTT guidance does not mention is the status of any generic therapy notes before any crime was reported and the client became involved in the CJS. Nor do they reference cases where the client is not a victim but might be or become a potential ‘witness’ in a criminal trial.
The new guidance focuses on rape and sexual abuse, but states it applies to other crimes too.
It declares that all future requests for the therapy notes of ‘victims’ should only be for what is relevant to the case - timely, necessary and proportionate. This was challenged by campaigners including ‘Keep Counselling Confidential’ led by Rape Crisis, the Centre for Women’s Justice and End Violence Against Women Coalition, also the British Psychological Society (BPS), the UK Council for Psychotherapy (UKCP), the National Counselling and Psychotherapy Society (NCPS) and the Royal College of Psychiatrists. They claimed that this would increase the likelihood of notes being requested.
I did not agree with this view, although I did have concerns about inappropriate requests continuing to be made, by the police primarily, and fulfilled by therapists due to a lack of awareness and training on both sides. I felt it was up to we therapists to take the lead and challenge any inappropriate requests to protect our clients’ rights and best interest, in line with the current PTT guidance.
However, the campaigners’ challenge was successful, and the Victims and Prisoners Bill was amended to lay down in law more limited requests for clients’ notes as outlined in the PTT guidance:
Update on the Victims and Prisoners Bill from London City Hall Blog
Claire Waxman OBE, London's Victims' Commissioner, 03 May 2024
https://shorturl.at/sY7Qg (Third Party Material Requests - 5th point)
After years of campaigning on the subject, in October 2023 the Government introduced a clause to the Victims and Prisoners Bill to clarify that third party material requests made by police must be necessary and proportionate.
We called on the Government to go further, especially with regards to counselling and therapy notes … In April 2024 the Government conceded and accepted an amendment which requires the police to be satisfied that a victim’s counselling records are likely to add ‘substantial probative value’ to their investigation before a request can be made. It will also mandate that police must begin with an assumption that counselling notes are not relevant to an investigation, unless proved otherwise.
Unfortunately, being part of the Victims and Prisoners bill, headlines and articles focused more on prisoners, for example:
Ministers can veto prisoners' parole in Victims and Prisoners Bill
29 March 2023, https://shorturl.at/cVXHr
Ministers will be able to block the release of some prisoners and stop others getting married under new plans to overhaul the parole system. The idea (COMMENT: and others highlighted in the article mostly about prisoners) is among measures in its Victims and Prisoners Bill, which is aimed at giving greater rights to victims of crime in England and Wales.
Ministers promise to make it easier for crime victims to get justice. But critics fear efforts to improve life for victims will be lost in a bill which also combines parole reform.
Now the government is promising new legislation to allow victims to be kept informed, and also to challenge decisions. Justice Secretary Dominic Raab said the plans will "make sure that victims are front and centre of the criminal justice system".
Diana Fawcett, chief executive at Victim Support, said the charity welcomed many of the measures in the bill "which will make a real and meaningful difference to the experience of victims. But we are seriously worried that expanding its scope to include prisoners will be a distraction and delay it even further."
Whilst other headline and articles were confusing and not entirely true – not all notes will ‘stay private’ and it is not just about rape victims’ notes:
Rape victims’ therapy notes to stay private
David Woode, The Times Crime Correspondent, Friday April 26 2024
Campaigners have hailed a change in law that will protect the privacy of people who have suffered sexual violence. Andrea Simon, the director of the End Violence Against Women Coalition, said that therapy should be a ‘safe and private space’ for victims. Rape victims’ therapy notes are to stay confidential as it emerged that the police requested access to the “deeply personal and sensitive” documents ... Legislation makes it clear that an officer should request third-party material only if they believe it is “relevant to a reasonable line of inquiry, not due to speculation”. The police must now be satisfied that a victim’s therapy notes will add substantial value to their investigation before they request them.
I continue to advocate for all therapists to have ‘Pre-Trial Therapy’ training to enable them to adopt a ‘Pre-Trial Therapy informed approach’ to their general practice as we never know when we might need it.
It is important to be familiar with the PTT guidance and be ready to respond appropriately as a client’s situation and possible needs in relation to the CJS unfold - ideally well before receiving any requests for our client’s therapy notes.
Don’t be caught out – be proactive not reactive.
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