Why is it a problem?
- Counsellors and therapists make notes during sessions to help them keep track of what's been discussed – not so that these notes can be used as criminal evidence. This means that counselling and therapy notes are very rarely relevant for helping police to establish the facts of a case.
- Often, notes obtained by the police are being used against survivors – either to undermine them in court or as a reason for police officers to take 'no further action' and stop pursuing the case.
- All of this can be really harmful for people who have already experienced some of the worst crimes imaginable. One survivor described having her therapy notes used against her in court as being "like another trauma".
- As a result, many survivors decide not to seek counselling or therapy until after a decision has been reached in their case. But, with rape cases taking an average of more than two years to complete in court (and many taking far longer), this can have a serious impact on their health and wellbeing.
❗ A 'no further action' decision doesn't mean that a crime didn't happen or that a suspect isn't guilty. It simply means that the police don't believe they have strong enough evidence to take the case forward.
Our campaign is backed by the four largest professional bodies representing counsellors and therapists
The below statistics are based on the results of a survey carried out by the National Counselling and Psychotherapy Society of its members.
-
Nearly 1 in 4therapists surveyed
have had notes requested by the police
-
86%of those who have had their notes requested
said the case related to sexual violence ‘most' or ‘all of the time’
-
95%of therapists surveyed
have ethical concerns about the police requesting notes
Do counsellors and therapists have to give survivors' notes to police?
No. But, understandably, many feel conflicted between not wanting to harm or slow down a criminal case, and their ethical responsibilities towards the survivor they worked with. If counsellors and therapists refuse to hand over notes, the police can still try to access them through a court order. Or police officers might tell the counsellor or therapist that the case will be discontinued as a result.
Just 1 in 4 of the counsellors and therapists who responded to the National Counselling and Psychotherapy Society's survey on this issue said they would feel confident in making the decision as to whether to disclose notes.
That's why we're asking MPs and peers to change the law
We want MPs and peers to support a new clause in the Victims and Prisoners Bill that would give counselling and therapy notes better protections in law – and ensure they cannot be used in most criminal proceedings.
We are calling for a process where:
- Information in notes can only be accessed if it has 'substantial probative value'.
- All requests for notes have to be considered by a judge and can only be made once a suspect had been charged.
⚖️ Such a process would balance a defendant's right to a fair trial with a survivor's right to access counselling or therapy without fear. And we know it works because it's already being used in Australia.
