Pre-Trial Therapy - Accompanying note for therapists

• Introduction
• Points for therapists to note in providing pre-trial therapy to rape and serious sexual assault victims
  • Key points for therapists
  • What is best for the victim – the pre-trial therapy discussion
  • The importance of transparency around the processing of personal data
  • Processing of personal data
  • Police requests for information and material
  • Considering the views of the victim
  • The timing of therapy in the context of a criminal prosecution
  • Continuing therapy up to trial
• Why some therapies/techniques could present difficulties and need specific consideration
  • Certain types of Group therapy
  • Hypnotherapy – Hypnotic Age Regression
  • Debriefing

Introduction

This accompanying note is to provide complementary information for therapists to the CPS Legal Guidance on Pre-trial Therapy. It does not have the force of guidance but is intended as a helpful complement to our guidance for therapists to better understand the criminal justice process and how this can impact clients who have been victims of a criminal offence. This accompanying note has been drafted with significant input from an expert advisor.

The term ‘therapy’ used here covers the range of psychological and emotional counselling and therapeutic approaches and support provided for difficulties that are associated with and/or exacerbated by a criminal offence. References to ‘Therapists’ include professionally trained practitioners and those undergoing training.

Therapy provision is not organised and delivered in a uniform fashion. It is offered in many contexts, such as on an individual, family or group basis and in a wide variety of settings, for instance, the NHS, voluntary sector agencies and private practice. Therapeutic approaches and services are continually evolving.

Points for therapists to note in providing pre-trial therapy to rape and serious sexual assault victims

Key points for therapists

• It is important that all victims are made aware that they can access therapy to ensure that their emotional and psychological needs are met before, during and after the trial. There is no requirement to delay therapy on account of an ongoing police investigation or prosecution.
• The health and wellbeing of the victim should always be the determinative factor in whether, when and with whom they seek pre-trial therapy, including the timing and the form of therapy undertaken.
• It is for the victim to make decisions about therapy with their therapist. Criminal justice practitioners should play no role in the decision-making process beyond alerting victims to the availability of therapy.
• 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. See ICO guidance.
• Notes made during the course of therapy will contain criminal offence data if details of criminal acts are recorded. Specific data protection obligations on therapists arise in such circumstances. See ICO guidance.
• Information compliant with Article 13 UK GDPR would need to be provided by the therapist to the victim whose data is being processed. That information includes the purposes for which the victim's personal data is being processed (for example, it is strictly necessary for the administration of justice), retention periods for that personal data and with whom it may be shared.
• 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.

What is best for the victim – the pre-trial therapy discussion

The choice should be for victims, on the basis of their needs and wellbeing, as to whether to proceed with therapy or a particular type of therapy. Explaining the potential implications of different types of therapy when a victim is involved with the criminal justice system could help with their decision-making and encourage them to access therapy. The police and CPS have no role in this decision-making process but should make sure the victim is aware of their right to access therapy.

Specific considerations regarding PTSD, inconsistencies and gaps in memory, self-blame, shame and avoidance, as well as "false" and recovered memories are outlined below. Certain types of therapy, including certain types of group therapy and hypnotherapy, have potential implications for the investigation and prosecution process and the need for caution around these therapies is also discussed. The implications of using debriefing techniques and leading questions are also considered. It is particularly important, however, for therapists and victims to understand that the overriding priority is that the victim receives the best therapy for them at the time, and that the therapy is not delayed pending court proceedings, which can take many months.

The importance of transparency around the processing of personal data

In accordance with Articles 13 and 14 UK GDPR, victims should be presented with a range of ‘privacy information’, including the purposes for which their personal data is being processed, the retention periods for that personal data and with whom it may be shared.

It is important victims are made fully aware of the details of how their data will be processed, including:

• the fact that the information provided by them or recorded about them by a therapist could under specific circumstances – if it is part of a live criminal investigation directly linked to what is being discussed and it is a reasonable line of inquiry (see the Pre-Trial Therapy legal guidance chapter, ‘Advising investigators about their responsibilities - Reasonable lines of inquiry') – it could be passed to the investigator investigating the alleged criminal activity against them;
• the fact that information provided by them could under specific circumstances be passed onto a CPS prosecutor who is involved in prosecuting alleged criminal activity against them;
• the fact that information provided by them could under specific circumstances be disclosed to the defence team representing the defendant who is alleged to have committed criminal acts against them;
• the fact that information provided by them could under specific circumstances be referenced in evidence in a future criminal trial which is determining the defendant's legal responsibility for alleged criminal acts against them.

Processing of personal data

The notes from therapy sessions will almost inevitably constitute 'special category' data as defined by the UK GDPR. There are additional rules governing the processing of this data and therapists should ensure that principles and requirements of the UK GDPR are complied with. For more information see the general see ICO guidance and ICO guidance on processing special category data.

It is possible that during therapy an individual may disclose details of criminal acts that have been committed against them. Notes of these disclosures will constitute 'criminal offence data' and there are additional conditions that apply when processing this material. For more information see ICO guidance on processing criminal data.

The ICO has published guidance that aims to assist health and social care providers in understanding their obligations when processing personal information and a template policy document.

Police requests for information and material

Unlike therapists, who will be processing data under the UK GDPR, police will be undertaking processing for law enforcement purposes, which is governed by Part 3 of the Data Protection Act 2018. The police have an obligation under the Criminal Procedure and Investigations Act 1996 to pursue all reasonable lines of enquiry. Reasonable lines of inquiry mandate that the police examine both the case against the suspect and anything which points away from the suspect. It is therefore perfectly proper for the investigator to seek information which may go to exonerate the suspect. The chapter ‘Advising investigators about their responsibilities - Reasonable lines of inquiry within Pre-Trial Therapy legal guidance, sets out the advice that the CPS provides to investigators around the approach to reasonable lines of inquiry in the context of therapy.

Requests from the investigator should be:

• of a sufficient quality for the therapist to understand what is required and why it is required;
• specific so the request could not be considered speculative;
• reasoned and not a blanket request for information.

Investigators are not required to provide extensive operational details to a therapist but must provide the therapist with enough specificity of what data is sought and why so that the therapist is able to comply with their own data protection obligations as a controller when responding.

Investigators should not request a therapist to allow them to browse files containing therapy records speculatively in order to decide whether anything within them might be of interest. They should also not request that therapists undertake a speculative search of notes on their behalf.

Before providing material to investigators, therapists should be aware of the 'data minimisation principle' which requires that personal data should be adequate, relevant and limited to what is necessary. This may mean restricting what is shared to ensure that information which is not relevant to the investigator's request is not disclosed.

For more information on the data minimisation principle see ICO guidance.

Considering the views of the victim

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. The victim can then have the opportunity to review their notes and the detail of any proposed disclosure to the investigator, which should be clearly explained. 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 made in safeguarding the victim, noting that this could be more harmful if disclosed later. Where a victim agrees to their data being shared, it is important that this is not solely relied on as a basis for sharing material with the investigator.

As with obtaining victim agreement to engage in therapy, special care should be taken if the victim is a child, young person, or adult with significant impairments such as learning difficulties, dementia, serious mental health problems, substance abuse.

The timing of therapy in the context of a criminal prosecution

Every individual and every case is different, and it is not possible to identify an optimum point when therapy should take place in relation to when an offence occurred. For example, in cases involving non-recent incidents of sexual assault or rape, the therapy may occur many years after the event. The victim may not have decided whether to report the matter to the police and, in some cases, may not disclose that an offence has occurred until the therapeutic process has commenced.

For the avoidance of doubt, it is not necessary to delay the start of or stop therapy:

• If the victim has not reported offences to the police but expresses an intention to do so at the time of the initial consultation or during the course of therapy.
• If the victim has reported the offence to police but has not yet provided an Achieving Best Evidence (ABE) interview or statement.
• If the victim is unsure whether to report the offence to the police.

Where a victim chooses not to report criminality to the police, safeguarding issues that may override a victim's wish not to report should be considered by the therapist.

If therapy has started and, during the course of the therapy, they decide to report the offence to the police there is no requirement for therapy to be stopped.

Therapy may increase the ability of the victim to recall incidents – for instance, by engaging memories that they could previously recall but had actively and deliberately kept from coming to mind or from being shared. This may have been the case due to shame and avoidance, or the victim fearing the consequences of reporting, including not being believed or being placed at further risk.

If a victim discloses events for the first time to the therapist, the therapist would potentially be a "First Disclosure Witness" and could be asked to make a witness statement if the victim chooses to report an offence to the police (and could ultimately be required to give evidence in court). It is important to be aware that the notes recorded by a therapist in this scenario have the potential to be a valuable source of evidence for the prosecution case.

When treating a victim of rape or serious sexual assault, a therapist is unlikely to have a detailed understanding (or may even be unaware of) the criminal investigation; they may not have any established contact with an investigating officer. There may, however, be circumstances in which a therapist is familiar with the ongoing criminal investigation and can identify in what the victim tells them information not known to the investigator. It is important to be aware that new information in this scenario is likely to be relevant to the criminal investigation/prosecution and the therapist could become a witness in the case. There is no requirement in these circumstances that therapy be paused.

Continuing therapy up to trial

There is no reason why therapy should not continue up to the trial. Therapy should also continue during the trial and post-trial if this is in the victim’s interests.

Why some therapies/techniques could present difficulties and need specific consideration

Certain types of Group Therapy

Group therapies in which victims and other participants focus primarily on and are required to share their experiences related to criminal offences can present difficulties in the criminal justice process. That is because the defence may argue that the potential for confusion, collaboration, undue and even unconscious influence and fantasy is much higher than in other types of therapy. Although the defence could seek to use memories recalled or shared in the course of this type of therapy to undermine the credibility of related evidence, it is for the victim to decide whether to access this type of therapy based on their needs, health and wellbeing. Group therapy that focuses on psychoeducation emotional support and coping strategies should not be considered to be in any way undermining.

Hypnotherapy – Hypnotic Age Regression

Hypnotic age regression can pose difficulty in the criminal justice process if the only evidence of a particular event is obtained as a result of taking the person back into childhood in their imagination. Any ‘events’ that are remembered in this way should be treated with caution.

Debriefing

The process of repeatedly recounting the details of a criminal offence should be treated with caution.