New guidance was issued in May 2022 by the Crown Prosecution Service (CPS) to replace earlier guidance jointly published with the Home Office and the Department for Health in 2002 following the ‘Speaking up for Justice’ report. They also arise following a report by the Information Commissioner’s Office from May 2022 titled ‘who’s under investigation’ found that victims are being treated as suspects and that victims were feeling re-victimised by a system they are entitled to expect support from.
The guidelines are applicable to any victim of any crime where the investigation or trial is still open, and they are currently or contemplating accessing therapy.
Issues arose from the previous guidance as there was a clause which stated that a victim could not discuss details of their case in therapy, as this was oral evidence which should be protected. This meant that victims were unable to talk freely about their experiences in therapy. The fear of causing their case to fail, if they accessed therapy, also meant that access to therapy may have been delayed until after the trial, on the basis that they didn’t want their evidence to be seen as tainted or damaged.
The new guidance has made it clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution.
There is, however, still a concern that this may not go far enough as the therapy notes can still be shared with the defence and used in criminal proceedings.
The accompanying note for therapists sets out some key points for therapists, including:
- Therapy providers have obligations under each of the data protection principles set out in Article 5 UK General Data Protection Regulations (GDPR). When handling a request to share a victim’s therapy notes for criminal justice purposes, there needs to be a clear lawful basis (under Article 6 UK GDPR) under which therapists are providing victim’s personal data.
- Clinical notes made during the course of therapy will amount to ‘special category data’ and specific data protection obligations will apply for therapists.
- An information request from the investigator should provide the therapist with enough specificity of what data is sought and why to enable them to comply with their own data protection obligations as a controller when responding.
- The request from the investigator should be a targeted and proportionate way of achieving a specific purpose; unfocused requests to browse patient files in order to determine whether they contain anything of interest to the investigation should be rejected.
- Before providing material to the investigator, data protection requirements mean that therapists will carefully consider the ‘data minimisation’ principle. This may mean restricting which records are shared or redacting information in individual records before they are shared.
Whilst this is an extensive list of considerations (and not the only points), it will not doubt concern victims that anything they discuss in therapy and is subsequently documented within their records, could be used in their case and at trial. It raises the question as to whether therapy notes should be used at all, especially given therapy sessions are a chance for the victims to speak freely about their ordeal, without worrying whether it will be scrutinised in front of a judge and jury.
The CPS issued a further article in November 2022 entitled ‘CPS says: Victims of crime should not delay getting the therapeutic support they need’. This stressed that their message is clear and that “if therapy is needed aid recovery, there are no circumstances where access should be delayed”.
They also reiterate that the request for notes has to be reasonable and proportionate, to avoid any unnecessary intrusion and that notes must never be requested on a speculative basis. They provide further reassurance by stating that even where notes are requested, this does not automatically mean material will be provided to the defence. The only basis this can happen is where material can be reasonably expected to undermine the prosecution case or strengthen the defence case.
The guidelines also make it clear that it is good practice for a therapist to engage with the victim following a request for information from the investigator so that their views are properly considered prior to data being shared. If the clinical notes contain any information that could be considered psychologically harmful to the victim if shared, or that would adversely affect the therapeutic relationship, then appropriate considerations need to make in safeguarding the victim, noting that this could be more harmful if disclosed later.
Conclusion
It is understandable that victims will no doubt be concerned at the prospect of their private and honest discussions may be used against them in a defence case. The CPS, has however, made it clear that this is the exception not the norm and that due consideration must be given on an individual basis before disclosure is provided. It would be prudent for practitioners to discuss this in advance of any therapeutic work, so that any victim is aware of the guidelines in advance of their therapy, rather than when a potential request for information may arise. Each disclosure request will need to be made and considered on an individual basis as there is no ‘one size fits all’ for deciding what is or isn’t relevant.
Our legal expertise spans multiple NHS and public health sectors from mental health and social care, mental capacity, clinical negligence to inquiries and investigations.
For further information, please contact:
Catherine Egan, Hill Dickinson
catherine.egan@hilldickinson.com
