Keep Counselling Confidential

With thanks to Nogah Ofer for this article. Nogah is a solicitor at Centre for Women’s Justice, she is a policy adviser and heads the legal advice team.

In 2023, Rape Crisis England & Wales began a campaign to try to limit disclosure of rape survivors’ counselling notes to the police during sexual offences criminal investigations. They were soon joined by other women’s sector organisations: End Violence Against Women coalition and Centre for Women’s Justice, and supported by the main counselling bodies in the UK, including NCPS.

Eventually, after 18 months of lobbying, the then Conservative Government under Rishi Sunak agreed to amend the law to create a higher threshold for disclosure of counselling notes than for other types of records about victims and survivors. This new law is expected to finally come into force in late 2025. The Home Office is now drawing up police guidance on how it should be applied.

Why do we need a change in the law?

Therapists and their clients alike usually assume that their discussions are strictly confidential, and indeed this is an essential ingredient in building a trusting and open relationship in therapy. However, when it comes to sexual offences that have been reported to the police, this is not the reality.

During a police investigation the police can, and indeed are obliged to, follow up all ‘reasonable lines of enquiry’ whether these help the prosecution or the defence. Traditionally many police forces have had their officers embark on broad ‘credibility trawls’ about victims’ personal histories, looking at a range of materials held about them by different agencies including GPs, schools and colleges, social services and counsellors. If the victim or survivor says that they have received therapy, the records will be sought.

Centre for Women’s Justice and other women’s organisations have been campaigning against the fact that most police investigations are more focused on investigating the victim that investigating the suspect. Over the last few years there has been a slow culture shift within the police away from making such blanket requests for records, but one aspect has remained: if the victim or survivor provided an account to the therapist about what happened during a sexual assault, the police will usually request this, in order to compared it with the account given to the police, to look for any inconsistencies. Some counsellors, particularly those working within Rape Crisis Centres, practice so-called ‘pre-trial therapy’ where there is no discussion of the facts of what happened. This can hinder the therapeutic process itself, and many counsellors and therapists do not follow this practice, so their notes are easily accessed by the police.

The harm caused by the existing police practice

When police access therapy records, they may be seen not only by police officers, but also by prosecutors in the Crown Prosecution Service and potentially by the defence lawyers, the perpetrator himself, and discussed in open court. The invasion of privacy can be devastating for the victim-survivor. If the notes are handed over to the police against her wishes it can also destroy the relationship of trust between the victim-survivor and the therapist.

For those victims-survivors who are aware that the notes could be requested, this creates a chilling effect in therapy making it more difficult for the victim-survivor to open up, and some even avoid therapy altogether, in case it hinders their criminal case. The result of all this is that the criminal justice process is a serious hinderance to recovery. Given that most investigations into rape and other serious sexual offences typically take a couple of years if not longer, and that only around 6% of cases result in a charge, this practice takes a toll on the mental health of a large number of people, most of whom will never see their cases go to court in any event.

How will the new law work?

The new law will create a higher legal threshold for the police to request therapy notes: they will need to show that there is reason to believe that the notes will have “substantial probative value” before seeing them. We believe this will make such requests extremely rare. The Home Office guidance is still being finalised, but we hope that it will include explicit instructions to police that the mere fact that the notes contain an account of the offence by the victim-survivor is not in itself a sufficient legal reason to request the notes. This is the main reason given by police officers currently. There may be some exceptional situations where there is some other particular reason, for example, if the first ever disclosure of the sexual assault or abuse occurred during the therapy session, or if there is some other evidence to show that the victim-survivor has given inconsistent accounts. But we hope that the run of the mill requests that we currently see should cease.

We are waiting for the Home Office to publish the final version of the new guidance and then we will have a clearer picture. We are also waiting for the Government to set a date for when the new law will come into force.

What should therapists do if they receive police requests for their notes?

The first thing to be aware of is that a request by the police is a voluntary request. It is up to the therapist to decide whether they will hand over their notes, they are not obliged to do so, unless there is a court order which specifically names them, or an organisation they work for, and orders disclosure.

Requests from the police should be made on a specified form for Third Party Materials which has boxes for the officer to set out exactly which notes are requested and why. The form also has a section for the police to record the victim-survivor’s views about the request and whether she agrees or not (though formal consent is not required).

It is then up to the therapist themselves to decide whether they will comply with the request. Just because the police have made a request does not mean that the notes have to be provided. The therapist is themselves a data holder under the Data Protection Act and has their own data protection duties to their client. They can ask the victim-survivor whether they consent and if they don’t, they may decide that to provide the records will harm, or even destroy, the relationship of trust between therapist and client and harm the mental health and recovery of their client. Even if the client does consent, the therapist has to apply their own judgment to the reasons given by the police, and may conclude that the material does not have ‘substantial probative value’. Apart from data protection duties, the therapist can and should also consider their professional ethics duties towards their client, including their duty to act in what they perceive to be the client’s best interests. In some cases the client may have accessed legal advice, and their legal adviser may be able to give some input, or the therapist may seek their own legal advice (please note that solicitors at Centre for Women’s Justice can provide this free of charge).

What happens if a therapist refuses to provide the notes to the police?

A therapist can tell the police that they are not able to voluntarily hand over the notes, but that if a court order is obtained, then they will hand them over. This would mean that they are not breaching their relationship of trust with their client, as they are only providing the notes if they have no choice but to do so. It would then be up to the police to discuss the situation with the Crown Prosecution Service and decide whether they should just drop the request or make an application to the court. In some situations the request has actually come from the defence lawyers. If the police tell them that the therapist is not providing the notes voluntarily, the defence lawyers can then decide whether to apply for a court order.

If either the defence or the prosecution apply to court for an order that the therapist hand over their notes, the court should inform the therapist of this in advance, and the therapist has the right to make their own representations to the court, or even attend the hearing and provide their views to the judge. There is no requirement to do so, it is just an opportunity, and many therapists will decide not to engage but just to wait and see if an order is made or not.

We hope that the new law will improve the harmful practice that exists today and provide a relatively safe space for victims and survivors to speak about their experiences and prioritise their mental wellbeing, whilst still being free to access the justice system.

If you have any experiences on this issue that you wish to share, Centre for Women’s Justice will be happy to hear from you, now or in the future. Please feel free to contact the author on n.ofer@centreforwomensjustice.org.uk