Protecting Counselling and Psychotherapy Case Notes
PACFA supports calls for law reform to better protect counselling and psychotherapy case notes.
Recent media reporting has highlighted concerns about counselling services routinely handing over complete client files, including audio and video recordings of counselling sessions that were stated to be “confidential”, in response to court subpoenas. Very often subpoenas are issued at the request of defendants in criminal proceedings alleging violence and sexual violence. Victims of these crimes are encouraged to contact counselling services around the country to receive timely support and begin to heal from their traumatic experience.
Exacerbated by poor historic regulation of the counselling profession, the safety of every therapeutic relationship threatens to be undermined by our inability to assure clients that the content of their counselling sessions is, in fact, confidential.
People who have experienced trauma are encouraged to seek support through counselling services to begin healing. However, when therapeutic records are accessed through legal processes, it can undermine trust in the safety and confidentiality of these spaces.
A sexual assault survivor sums this up in a recent media article:
The first time I walked into the sexual assault counselling room they said ‘This is a safe and confidential space’. The room was calm and inviting…I spoke about my childhood trauma… I spoke because I was told I could trust it would stay in the room and that my disclosures would be kept in confidence. I spoke because I believed my emotions, my feelings, my pain would not be taken from me and shared with my abusers. But that promise came crashing down, when my abuser’s lawyers subpoenaed my sexual assault counselling notes. My therapy was turned into evidence for the defence. From that day, I could not fully trust another crisis line, hospital or counsellor. The one thing I had worked for, a safe, judgment-free space with a trusted person, got ripped away from me…Once again there was nowhere for me to go that was safe.
We know that undermining the privacy of the therapeutic relationship severely jeopardises its capacity to be a space of healing and personal growth for the service recipient, and while this should be protected, it isn’t.
PACFA registered practitioners should not mistake the limited confidentiality of therapeutic practice with legal privilege, which does in fact protect a solicitor or barrister from being called to testify against a current or former client.
All health professionals are subject to legal principles that prioritise the right of an accused to a fair trial, over the rights of victims to have safe spaces to process and heal.
PACFA registered practitioners are also the subject of subpoenas from a range of other legal jurisdictions including family, civil, workers compensation and transport accidents.
Notes should support continuity of care, informed decision-making, and accurate documentation, while remaining clear, factual, and respectful. They may be accessed in legal or ethical proceedings and can play an important role in professional accountability.
PACFA’s Good Practice Guideline Writing Session Notes encourages practitioners to “bear in mind that session notes have legal implications, including court subpoenas and the client’s right of access to read what has been written about them”.
PACFA’s Good Practice Guidelines in relation to privacy, intake and consent in private practice make clear that:
Information discussed during sessions is confidential and may not be shared with anyone without written permission except when the practitioner is legally obliged:
- to report a serious and imminent threat to life, health or property
- to report any abuse or neglect experienced by a young person under the age of 18 years, and/or
- to release client records when required by court order
Until such time as there is a change to the legal situation here in Australia, PACFA’s recommendation remains that session notes should be legible, impartial, accurate, timely and complete. More detailed advice for practitioners can be found in PACFA’s Good Practice Guidelines.