Discovery of Psychotherapy Notes

Discovery of Psychotherapy Notes

Requests for discovery of psychotherapy notes usually occur when a client is involved in a criminal process as a complainant witness or is pursuing compensation through a civil action. The therapist – client relationship is not privileged in Irish law and has no legal right to confidentiality. Under Data Protection legislation, your client has the right to access any notes you have kept on them.

Criminal Processes

If a client makes a complaint to the Gardai that they have been the victim of a crime, the investigating Garda may ask the client to sign a consent form to allow access to any therapy notes which may exist. In Irish law the right of an accused person to a fair trial is paramount. The purpose of requesting the notes is to ensure that if the case goes to trial there may be something in the notes which would support the defence case. The Garda may not alwaysexplain to the client that if a decision is made to bring charges against the accused person the therapy notes will be shared with the defence.

A request will be made directly to the therapist by the Gardai for the notes. It would be good practice to discuss the request with your client, to inviteyour client to read the notes so that they are aware of the contents before they decide if the notes should be given to the Gardai.

If the client decides that the notes should not be passed over to the Gardai, theymust understand thatif a case proceeds to trial, the defence has the right to request the notes by getting a subpoena from the court. The introduction of the notes at this late stage may cause difficulties in the prosecution of the accused and be very distressing for the client.

In order to protect clients many of the organisations working with sexual violence have signed a Memorandum of Understanding with the Director of Public Prosecutions which undertakes the following:The client and therapist may request the DPP to redact certain parts of the notes if they are not relevant to the case in hand. The DPP will consider this. It is agreed the notes are passed to the defendant’s legal team and will not be copied or given to the defendant. The notes will be returned to the DPP at the conclusion of the trial. This Memorandum does not apply to therapist in private practice

Note: The Minister for Justice is currently introducing a new Sexual Offences Bill which may introduce some measure of privilege for therapy notes.

Civil Processes

If a client is engaged in a civil action a request for discovery of medical, psychiatric and therapy may be made by the defendant. In civil actions your client will have their own solicitor to advise them.

Maeve Lewis, One in Four