- April 9, 2024
- Posted by: legaleseblogger
- Category: Related News
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## AI Legalese Decoder: Helping Victims of Crime Navigate Legal Processes
[England] A beloved relative of mine was kidnapped by a stranger and sexually assaulted. She luckily managed to escape his apartment and did everything she was supposed to – Dr’s, filed report, etc. The police even went to his house and found her fitbit/took his phone. His and his friend’s witness statements were verbatim the same. That was 2 years ago and I don’t know what more evidence they could possibly need to convict this ghoul but somehow he is not in jail.
Now luckily outwardly she’s managed to get herself a good job, friends, and mostly move on from the bs. However understandably she wants to go see a therapist to work through it. She doesn’t feel up to it though because she’s been told by the caseworker that the notes could be used as part of her case in court. Understandably she wouldn’t want that, and I think it’s practically impossible to be honest with a therapist if you’re worried everyone’s going to hear it AND you’re going to be judged on it.
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She’s not making a move in the right direction because of this. It could really help her, but I understand her concern. I don’t know if the police can legally use a therapist’s notes without the patient’s consent; like isn’t that the point of the confidentiality agreement? Where would I even find a definitive answer to this? I really want her to get the help she deserves, especially after the complete letdown of the past 2 years.
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****** just grabbed a
I think this would be the first question to ask upon approaching a therapist. They would be in a position to answer better than anyone else.
Medical records are not routinely disclosed, especially in situations like this.
What *could* happen is that the prosecution may need to review any records as part of their disclosure obligations. If the records contain anything that had the tendency to assist the defence or undermine the prosecution, the relevant parts might be disclosed to the defence.
But then, the issue would be for the defence to cross-examine the complainant about those apparent inconsistencies.
What matters most is that your relative gets the support they need. Do not let anxiety about a potential trial be a roadblock to healing.
Some relevant reading.
https://www.bacp.co.uk/bacp-journals/healthcare-counselling-and-psychotherapy-journal/january-2020/examining-the-evidence-for-pre-trial-therapy/
Hey man, really sorry to hear this. Psychologist here. Have just summarised the issues for my NHS trust, so I’ll attach these here. This is more from our perspective – we have always had a tension in these sorts of cases, as our priority is the individual, whereas the police’s priority it, understandably, the case.
Summary as submitted :
The main national guidance document from the Crown Prosecution Service is this from May 2022: [https://www.cps.gov.uk/legal-guidance/pre-trial-therapy](https://www.cps.gov.uk/legal-guidance/pre-trial-therapy)
There is an accompanying note for therapists: [https://www.cps.gov.uk/legal-guidance/pre-trial-therapy-accompanying-note-therapists](https://www.cps.gov.uk/legal-guidance/pre-trial-therapy)
We have also recently identified a helpful and easier- to-read resource toolkit to help manage the different circumstances, including some helpful guidance and ‘Dos and don’ts’ regarding how it may be best to write clinical notes:
• Bluestar project website: https://www.bluestarproject.co.uk/toolkit/
• Therapist’s guide: [https://www.bluestarproject.co.uk/wp-content/uploads/2022/03/Bluestar_Therapists-Guide_Web.pdf](https://www.bluestarproject.co.uk/wp-content/uploads/2022/03/Bluestar_Therapists-Guide_Web.pdf)
• Note keeping guide: [https://www.bluestarproject.co.uk/lorem-ipsum-5/](https://www.bluestarproject.co.uk/lorem-ipsum-5/)
It’s helpful to read the whole CPS document, but here are the guiding principles, which differ from those issued back in 2002. It’s clear that we should not stop people from accessing therapy before, during or after the trial, and that we need to be clear with clients that if there is a ‘reasonable line of enquiry’, then therapy notes may be requested by the courts. The process that the courts need to follow has many steps, which are included in this flowchart:
[https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/Obtaining-and-disclosing-pre-trial-therapy-notes-flowchart.pdf](https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/Obtaining-and-disclosing-pre-trial-therapy-notes-flowchart.pdf)
**Key sections from the CPS document:**
**Fundamental principles**
On the prioritisation that the guidance will give to victim health and wellbeing:
• The health and wellbeing of the victim should always be the determinative factor in whether, when and with whom they seek pre-trial therapy.
• It is for the victim to make decisions about therapy with their therapist, including what type of therapy is obtained and when that therapy is obtained. Criminal justice practitioners should play no role in the decision-making process beyond alerting victims to the availability of therapy.
• It is paramount that all victims are aware that they can access therapy to ensure that their emotional and psychological needs are met before, during and after any potential trial. There is no requirement to delay therapy on account of an ongoing police investigation or prosecution.
On the need to ensure that any request to access therapy notes represents a reasonable line of inquiry:
• The law governing disclosure imposes an obligation on the police to pursue all reasonable lines of inquiry whether these point towards or away from the accused. Access to therapy notes can only be requested in an individual case when it is a reasonable line of inquiry that may reveal material relevant to the investigation or the likely issues at trial. What is reasonable in each case will depend on the circumstances of the individual case, any known issues in the case, including any potential defence, and any other information informing the direction of the case.
On the need for practitioners to comply with data protection legislation and guidelines when handling victim’s personal material:
• Therapists, investigators and prosecutors must understand and comply with all relevant data protection legislation and guidelines when processing personal material generated in therapy. Therapists must be transparent with victims at the outset of therapy about how their personal data will be held and processed and highlight their right to object to processing at any time.
• An information request from the police in relation to therapy notes 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. Unfocused requests to browse victims’ files in order to determine whether they contain anything of interest to the investigation should not be made.
On the limited circumstances when the content of therapy notes will be disclosed to the defence in criminal proceedings:
• The duty to disclose material generated as a result of therapy to the defence arises only in circumstances where that material might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.
This is a summary, as Reddit won’t let me put the longer one in, but happy to discuss.
Good luck!
Can she afford private therapy? If so, no-one will know she’s been unless she tells them, and she can give the therapist a false name and pay in cash if she’s still worried, but no private therapist is going to contact the authorities and tell them who they’ve been treating.
If she can’t and is relying on the NHS, it will probably be at least a year after she’s referred before she gets an appointment, and the court case might be over by then.
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