Confidentiality is key to therapeutic work, a protective boundary that enables therapists to be allied with their client’s emotional needs. New legal guidelines threaten to turn psychotherapists into informers.
On 26 May, the Crown Prosecution Service (CPS) and Attorney General published updated guidance on supporting victims of crimes with an active report, investigation or trial within the criminal justice system. The new guidelines allow the police, CPS, barristers judges and perpetrators access to therapy notes if there is a “reasonable line of inquiry” that may “reveal material relevant to the investigation or the likely issues at trial”.
This means if a victim of a crime has discussed said crime in a therapy appointment, a therapist is likely to be approached to provide their clinical notes as a form of third-party evidence.
The CPS guidelines do not apply to perpetrators, since they are not relying on state resources. If a defendant chooses to access therapy during criminal proceedings, in other words, they can speak freely.
Though theoretically applicable to any victim of a crime, the CPS guidelines – originally introduced in 2002 – are disproportionately applied to survivors of sexual violence.
Activist groups are clear about the potential impact of the revised guidance, which they claim “will block rape victims from accessing vital therapy” and “dramatically reduce protection and rights to privacy for survivors of rape and sexual violence – many of whom experience severe, wide-ranging and long term trauma”.
I’m a psychotherapist with a focus on trauma as a result of sexual violence. In my 12 years of experience, I’ve seen my own pre-trial clients forced into silence in order to pursue a case – or drop their case in order to be able to speak freely in therapy. These new guidelines will make things unimaginably worse.
The new guidelines do not come as a surprise, however, but rather build on the CPS’ 20-year legacy of silencing survivors.
Until last month, victims were unable to speak about the details of crimes within therapy as the CPS feared such discussions may cause changes and inconsistencies in a victim’s account, a fear that relies in part on the debunked false memory syndrome.
Whilst the revised guidelines are clear that victims can now speak about the crimes of their perpetrators, what they say could be used as evidence in their case.
At the root of much of this problem is a fundamental incompatibility in how talking therapy and the criminal justice system regard the recollection of trauma.
Therapists believe a survivor’s account simply because they are telling us about it; their subjective recall is necessarily a truthful account of what they need from therapy.
To the criminal justice system, a victim’s account is evidence and as such must be objective. Therapists allow clients to share as much or as little as they like; the criminal justice system demands extensive, often excessive, questioning. A recent report by the Information Commissioner’s Office condemns this practice in rape and serious sexual offence cases, noting routinely disproportionate requests for data.
Even before the revised guidance was introduced, therapists were often subject to such requests. Therapists’ notes have long been used as evidence in the criminal justice process (theoretically, notes are provided at a therapist’s discretion; in practice, a therapist’s refusal to provide notes can derail prosecution). While relatively rare, therapists have also been summoned as witnesses to corroborate the victim’s account.
The revised guidelines ostensibly serve to protect therapists’ notes from unnecessary intrusion by stating that prosecutors can’t speculatively ask for therapists’ notes, only if they have a “reasonable line of enquiry”. Once notes are in the hands of the state, the guidance sets out that notes should only be used as evidence when they undermine the prosecution’s case or assist the defence case. Yet neither therapists nor victims have a choice in how their notes might be used.
All of this contributes to victims’ reluctance to approach criminal justice and mental health systems, compounding justifiable fears of racism, sexism and homophobia.
Being forced to hand over this kind of personal information is an intrusion into a victim’s right to confidentiality, and the privacy of therapeutic recovery from trauma. It enforces silence among survivors, the very thing that enables it to occur within our communities, and which prolongs survivors’ trauma.
Privacy is essential for re-empowerment and recovery after trauma. Therapists should resist being forced into the role of oppressor.
Erene Hadjiioannou is an integrative psychotherapist supporting survivors of any gender to recover from sexual violence.