Our guest blog this week has been written by Rosaleen McElvaney, PhD,  a Principal Psychotherapist in St. Clare’s Unit, Children’s Health Ireland at Connolly, a specialist child sexual abuse unit for children and families where sexual abuse is a concern.

"Some of you may have heard Sarah Grace, solicitor, speaking with Pat Kenny on Newstalk about her experience of engaging with the criminal justice system in Ireland after she was sexually assaulted a few years ago. Despite her knowledge of the legal system, Sarah described her experience of the court process as more traumatic than the attack itself (see Michael Staines’ article). 

One of the issues highlighted by Sarah is that of the release of counselling/therapy records during criminal trials. She was shocked to realize that the person who attacked her could read about her most intimate difficult feelings about the assault. Imagine the challenge this presents to parents whose children are attending for therapy and they, as the parent, have to make the difficult decision whether to consent or not to their child’s therapy records being released to the courts. 

While it has always been possible for the courts to request copies of therapy notes, this procedure has been used increasingly in recent years and there is now a clear provision for this in section 39 of the Criminal Law (Sexual Offences) Act 2017 (www.irishstatutebook.ie). 

The rationale for this is that an individual may say something to a counselor or therapist that is relevant to the outcome of the criminal trial and thus, this information should be made available to the court. 

Who decides what is ‘relevant’ depends on how this process unfolds. In a criminal trial, it is usually the prosecution – the Office of the Director of Public Prosecutions (DPP) - who requests the notes, typically through the investigating Garda. The Garda explains to the person making the complaint (the complainant) that the DPP is requesting the notes. The Garda seeks written consent from the complainant and explains that the complainant does have the right to refuse this consent, in which case a court hearing will be held and the judge reads the notes to determine whether there is anything of relevance in the therapy notes. The judge may rule that the notes should or should not be made available. 

The Office of the Director of Public Prosecutions has prepared a booklet outlining the procedures for accessing the counselling records. The therapist concerned will invite the young person and parents to view the notes on file before they are released. The defence team and by extension the person accused of the abuse, will then be able to read these records. 

In practice, the dilemma for many families is that if parents grant permission for their child’s notes to be released, this effectively means that the person who is alleged to have abused the child will be able to read notes written by the therapist about what the child said in therapy. An example of a particularly sensitive issue, and one that children often find really difficult, is the feelings they experienced during the abuse, such as feeling sexually aroused. Children can feel very ashamed of how their body physiologically reacted to being touched in a highly sensitive part of their body; they can feel that because this felt ‘nice’ there is something wrong with them or they are in some way to blame for not stopping what was happening. Another example is where a child may talk about ways to protect themselves if they were to see the person who abused them on the street. They may need to explore: What to do in that moment? Where to go? Who to turn to? How to keep themselves safe? 

If the parent does not give consent for the notes to be released, this results in a delay in the trial proceeding as this will then require a separate hearing to be held to make the decision about whether or not the records should be released, without the parents’ consent. 

One of the key cornerstones of counselling and psychotherapy is confidentiality; having someone to talk to about those painful thoughts and feelings that are difficult to express, without fear of this being divulged to others. The confidentiality of therapy enables the child to feel safe. Counsellors and therapists have an ethical and professional obligation to keep records of the service provided and notes of the content of sessions help with the continuity of the work. Parents are informed at the beginning of therapy about the limitations of confidentiality and the possibility of court ordered release of notes. 

However, it is often difficult to take in this information at a time when parents are feeling very anxious about their children and relief at being finally able to access support. 

Our experience in working with children and families in St. Clare’s Unit is that when requests are made to release therapy records, parents feel pressurized to consent to this so as not to delay an already prolonged legal process but feel really conflicted about this sensitive information being released to the person who they believe abused their child. They struggle to understand how such a request could possibly be fair or just. We have had the experience of parents choosing not to proceed with therapy in these instances. 

Children and adults who have experienced sexual violence should not have to choose between engaging in the criminal justice process and availing of the help they need to recover from the experience of abuse."

Rosaleen McElvaney