Courts Bill 2013: Committee Stage

Wednesday, 26th June 2013

Part 1 of 2:

I tabled this amendment in the utmost good faith and I thank my colleagues in the Independent Group for their support for the amendment.

The issue of court ordered disclosure of complainants confidential records, be they medical, psychiatric or therapeutic and be the complainant an adult or a child, in the absence of any legislative guidelines is one of considerable and pressing concern. I have no intention of undermining the urgency and necessity relating to adult complainants but I see this Bill as an opportunity to introduce legislative provision and clear practice for the disclosure of sexual assault counselling communications regarding children who are witnesses in criminal trials.

I note the work in this regard and the calls to action by many children’s and human rights NGOs, civil society organisations and practitioners in the field of specialised assessment and therapeutic services for children who have been sexually abused. I am grateful, in particular, for the support and advice I have received from Rape Crisis Centre Ireland and Children at Risk Ireland in the context of assisting me in understanding the current lacuna in the protection of confidential therapy notes and records and developing the legislative solution proposed in the amendment.

I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in child sexual abuse cases, the right of the child witness to privacy as well as his or her right not to be revictimised or unduly traumatised by the criminal justice system and the public interest. It is wholly compatible with Irish constitutional law, Ireland’s obligations under the European Convention on Human Rights and the best interest of the child to provide in law that the disclosure of sexual assault counselling communications will only be granted by the trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.

I wish to provide an overview of the current law in Ireland, the jurisprudence of the European Court of Human Rights and arrangements in other common law jurisdictions. Such an overview is relevant to the arguments I am making in support of the amendment. However, I do not propose to document each area exhaustively because I am confident that the Minister, as a legal expert, is au fait with them and as a result of the fact that they have ably synopsised by the Government special rapporteur on child protection, Dr. Geoffrey Shannon, in a number of his annual reports and, most recently, his fourth such report which was published in 2010. It was via the latter that I first became aware of this issue. The report to which I refer contains Dr. Shannon’s finding that there was an urgent need for legislation governing the issue of disclosure of private records, such as medical records, and counselling notes.

The right of the accused to justice and procedural fairness is the cornerstone of the Irish criminal justice system and is principally guaranteed under Articles 43.1 and 43.2 of the Constitution. The European Convention on Human Rights provides further guidance via Article 6, which protects the right of the accused to the presumption of innocence and the right to a fair trial, and Article 8, which provides a right to respect for one’s private and family life and home and correspondence, subject to certain restrictions that are in accordance with law and necessary in a democratic society. The most relevant restriction in this context relates to the protection of the rights and freedoms of others. The issues at stake here clearly require the balance of what, in this context, are competing interests. There is a substantial body of jurisprudence from the European Court of Human Rights in Strasbourg which finds that a complainant’s Article 8 interests can be accommodated alongside the Article 6 rights of the accused.

The decisions from Strasbourg demonstrate that while the right to a fair trial is absolute, none of its contingent parts, of which disclosure is one, is itself absolute. A fine example of this can be found in the Doorson v. The Netherlands decision of 1996, in which the courts held that Article 8 interests:

…are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.

The court was confirming that while Article 6 is important, the concept of fairness that it embodies has many possible configurations.

The practice regarding disclosure orders for third parties has been considered in the past 15 years by many of our fellow common law jurisdictions. The disclosure process settled upon in these jurisdictions range from being governed by judicial rulings, as in Northern Ireland, to legislation, as in Australia, Canada and Scotland, to a combination of both, as in England and Wales. I have examined all of these. They vary in their application from being manifestly weighted in the interests of the right of the accused to a fair trial, as in Scotland, to a comprehensive codified system for the use and disclosure of confidential records in sexual offence cases, as in Canada, to models requiring judicial scrutiny on a case-by-case basis, as in Australia. Whatever the approach adopted, what is most important is that each jurisdiction has seen fit to debate the balance of rights and public interest considerations and to apply standards governing disclosure, non-disclosure and objection to disclosure.

In Ireland there is no legislative provision governing disclosure nor have these important issues been subjected to sustained analysis or consideration by the Irish superior courts. The matter is crucial with respect to child witnesses who have been the victims of sexual abuse. They are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. My understanding is that under current practice, therapists in recent years, especially in the past six to 12 months, have been receiving increasing numbers of requests from the Office of the Director of Public Prosecutions seeking access to the notes of children’s private and confidential therapy sessions.

I have several serious concerns. One is re-victimisation, creating a sense of powerlessness, stigma and betrayal at having innermost thoughts and feelings examined by a third party and, potentially, the alleged abuser. Another is the perception of a breach of trust, a betrayal by the therapist following the therapy process which could undermine the healing potential of therapy. This could also create a conflict between seeking counselling and reporting or proceeding with a prosecution. One could argue that the disincentive effect of disclosure of personal records would be such a powerful disincentive to report sexual offences – this relates to the public interest in the pursuit of justice area – and seek counselling – this relates to the public interest in restoring the child’s well-being and ability to function in society area – that it seriously prejudices the public interest.

There is a strongly held view by many practitioners in specialised assessment and therapy services for children who have been sexually abused, that therapy notes should be privileged outright on the basis that they hold neither material evidence nor information relevant to the proceedings. When we reflect on the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements these services have in place to manage the process, the rationale for such privilege is strong. Therapy, as a whole, is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is a particular type of human engagement whereby the exploration of the thoughts and feelings of the child at a particular point is facilitated. Therapy notes, in turn, are context specific. They derive from therapeutic encounters and, as such, are concerned with documenting feelings, thoughts, hopes, fears and dreams rather than actual facts or material evidence. Ultimately, the aim of therapy is to assist a child to get back to a life that is not dominated by the sexual abuse experience and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour and responses that have become unhelpful, burdensome or troubling to the child’s living experience.

Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of session. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children, in which the children can try out different roles to make sense of the abuse they experienced. However helpful to the children, therapists are becoming increasingly concerned about how notes describing such scenes might be interpreted in a legal arena and taken out of context. Trust in the therapeutic relationship and the creation of the a safe space is paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved where privacy and confidentiality of these therapy sessions are not sacrosanct.

I suggest that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child’s well-being and ability to function in society. I could offer several harrowing examples of the devastating effects the current practice is having on child victims of sexual abuse and their families, including the conflict that ensues between either seeking justice or striving for the healing and well-being of the child. However, to speak about these cases on the record would be inappropriate. There is one case I can refer to, however, which was given to me at the request of the subject. It is a case I find deeply disturbing. The case highlights the reaction of one teenager, currently engaged in sexual abuse counselling, at the thought of their therapy notes being disclosed to a third party. The person said if they had known starting the counselling process that their therapy notes might be disclosed, they would never have started the process. Having already started, but now knowing it is a possibility, they are afraid to explore certain thoughts and feelings, thus undermining the therapeutic value. Most upsetting, they said that the idea of their trauma being scrutinised by others was tantamount to their insides being poked at again. This is a classic example of the re-victimisation I referred to earlier. There is a sense of powerlessness instilled by the criminal justice system in the absence of disclosure guidelines and this must be addressed.

I note the language of the European Commission in respect of the EU directive establishing minimum standards on rights, supports and protection of victims of crime, which was adopted in October 2012. The Commission stated that one of the greatest tests of the quality of our justice system is how well we treat our victims and that appropriate treatment is a demonstration of the solidarity of our society for each individual victim and a recognition that such treatment is essential for the moral integrity of society. It is crucial, therefore, not only to combat and prevent crime but also to properly support and protect individuals who fall victim to crime.

It is important to this debate to understand the management systems that specialised assessment and therapy services employ and their relevance to disclosure. The first phase, which is distinct from therapy, is the compilation of an assessment report whereby the practitioner will take account of the abuse alleged by the child. This is the baseline account of what the child says has happened. It is passed on to social workers and the Garda, where appropriate. It is available to the DPP and, in the context of a criminal trial, is not difficult to see how its content is regarded as relevant information. However, then the process moves on into the next phase, away from the who, what, where and when. Instead, the focus is on therapeutic issues that arise for children in their recovery. If any information arises in the course of the therapy phase that substantively alters the picture in the assessment report, the practitioner will update the assessment report accordingly and pass it on to the relevant social worker and so on. In essence, any information or evidence relevant to a criminal trial for child sexual abuse is already disclosed as a matter of course. The information left contained in the counselling records and therapeutic notes have no material relevance but it represents the heart and soul of a damaged child. As the Minister noted earlier, the Bill is about addressing issues that have been long ignored. I put it to the Minister that we must bolster our protection of these child witnesses and I offer the amendment to the Minister in this regard as a legislative response.

Part 2 of 2:

I thank the Minister. I will not press this amendment. The Minister robustly engages in exchanges on the amendments tabled by Members. I know that, like me, the Minister understands the importance of this amendment. Having listened to his response, I know he appreciates the timeliness if we can find an appropriate and balanced wording. As I said, many practitioners wanted me to look for absolute privilege, which is probably what my heart would like to seek, but I realise we must achieve a balance which is what I strove to do. I take on board what the Minister has said. I looked at legislation for ways we previously defined counselling advice, so I am very happy to share that information with him.

In 2010, Dr. Geoffrey Shannon identified in his fourth annual report the urgent need for legislation governing the issue of disclosure of private records, such as medical records and counselling notes. It is now 2013. I would be very hesitant to go any other route, even though I have utmost trust and faith in the Law Reform Commission. The issue of adults must be looked at but for me there is a real and pressing concern in regard to children. I will engage in the process outlined by the Minister.

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