The big issue: Your notes, your rights
Therapy Today, December 2025 - January 2026

Changes in Crown Prosecution Service (CPS) guidance in 2022 were supposed to make it safer for people involved in a court case to have therapy and provide clarity for therapists.¹ But three years on from the campaign to 鈥榢eep counselling confidential鈥�, what is the situation? While in theory the regulations that came in two years ago should protect us, anecdotally lots of therapists are still under pressure to hand over their notes. Has anything really changed?

Sarah,* a therapist working in England, gave her notes to police during an investigation in 2022. 鈥榃hen I got the email I felt that this investigation would be an awful experience for my former client, as would the subsequent court case if one went ahead,鈥� she says. 鈥楾he investigation felt like further abuse to me because she had shared a variety of private information with me, and her abuser and his lawyer would be able to see it all, even though it had mostly nothing to do with the case. It felt very invasive and I felt protective towards her. I felt that control of confidentiality and safeguarding was being taken away from me 鈥� and her.鈥櫶�

After taking the situation to peer supervision, Sarah rang the client to confirm this was what she wanted then emailed the police her notes.听

鈥楢t the time I wasn鈥檛 confident about whether I had a right to refuse, especially as my client had signed it off. The other therapists agreed that it seemed a murky area but that it was best to talk through all the potential consequences with my client and check if she wanted to withdraw her consent,鈥� she says. 鈥榃ith a very heavy heart I sent everything over to the detective. It was difficult because, knowing the content, I believed it would do nothing to help the case or my client beyond providing a sentence or two that recorded historic abuse had happened, by whom and how long for.鈥� Sarah never found out what happened to the client, or the investigation, but hopes it went as well as it could.听

The Crime Survey for England and Wales (CSEW)² estimates that 鈥榟eadline crime鈥� 鈥� including theft, robbery and violence 鈥� hit 9.5 million incidents from September 2023 to September 2024. Many clients will have been victims of recent rape or sexual assault 鈥� the CSEW estimates around a million people a year are subject to it. Every year millions of people go to court for the trials around these life-changing incidents and the verdicts that follow. Some of those people will also take part in pre-trial therapy: that is, therapy that supports victims before a court case.听

Another group of clients in therapy are those with historic offences against them. These clients may have experienced past assaults or abuse and may only recently have made the decision to report what happened to them to the police. Given the prevalence and normalisation of violence and abuse, and the nature of therapy and counselling, any client may become 鈥榩re-trial鈥� 鈥� not just those who turn up with a case in progress.听

Victims of sexual assault have for decades hesitated to seek therapy ahead of a trial. A practitioner鈥檚 lack of confidence can be incredibly damaging for clients in this position.听

Dr Emma Byrne, 麻豆原创 therapist and author, has experienced pre-trial therapy as both a therapist and client.³ 鈥楳y experience as a client of pre-trial therapy with a not very confident practitioner was a desire to just not talk about 鈥渁ny of that鈥�,鈥� she says. 鈥業t made the shame worse: there was this thing that I couldn鈥檛 talk about because it made my therapist uncomfortable, and it made the idea of going to trial more terrifying because the impression I was left with was that they were afraid I would say something that would screw up my chances of my abuser being convicted.听

I became very circumspect. I felt I had to leave memories untouched in this vacuum-packed evidence bag until such time when I could decide whether to report the abuse or not. I was trying to tease apart whether or not to report the trauma, without ever being able to examine the trauma, and it was impossible to make a good decision under those circumstances. It was only when I could understand the nature of the abuse and what had happened to me that I could then decide whether or not to proceed to reporting it.鈥櫶�

Many fear that what was shared in the therapy room might be requested as evidence in the trial 鈥� even used against them 鈥� and with good reason.听

In a Home Office survey of 139 rape investigations in England between January and March 2023,⁴ third-party material had been requested in all cases. In those investigations police had made a staggering 342 requests for materials including records held by counsellors, GPs, schools and social services.听

Victims of crime also report that these excoriating investigations may themselves feel like further violence following their assault.听

In a report about the law around pre-trial therapy notes, Keep Counselling Confidential, one anonymous client was asked about how it felt to have their notes disclosed in court. They called it: 鈥楢 blow. A violation. An assault. Very painful and lasting.鈥�^5听

Even police investigators warn against the use 鈥� or threat of use 鈥� of notes in rape trials. One reported: 鈥業 had a completely supportive victim, an absolutely viable investigation, was sending it to the CPS and then all of a sudden they decided that they wanted counselling records. In the victim鈥檚 ABE [interview] she said that she鈥檇 received counselling for a completely unrelated matter to what was being reported, and the Crown Prosecution Service would not drop the fact that they needed to have sight of those counselling records otherwise they would not charge.鈥櫶�

139 rape investigations in England between January and March 2023⁴ reviewed by the Home Office involved third-party material being requested in all cases听

The investigator says they told the victim: 鈥楾his is what the CPS has said even though it鈥檚 got no bearing on your actual investigation.鈥� The investigator reports the victim responding: 鈥業鈥檓 not sharing, I鈥檓 not exposing my childhood life and my issues with anybody else, that鈥檚 private.鈥� The CPS then dropped the case.听

For therapists a lack of certainty on the law has the potential to wreak havoc in the therapy session; at any point clients may disclose historic sexual assault or abuse without warning. Without knowing the law therapists are left wondering how to record and work with disclosures like these, both for themselves and for their clients.听

Dr Emma Byrne, 麻豆原创 therapist

Victims and Prisoners Act

Last year the Victims and Prisoners Act came into law, changing legislation from 2022 around the use of notes from pre-trial therapy.^6听

While there haven鈥檛 been any changes to the pre-trial guidelines since the Act came into law, the increased threshold for accessing therapy notes means application of the pre-trial guidelines has changed for therapists.听

Following successful campaigning by an alliance supported by 麻豆原创, the Government accepted an amendment to the Victims and Prisoners Bill⁷ that raised the legal threshold for the police to ask for access to notes. The Bill was enacted last year.听

Those who spearheaded the campaign convened from leading charities Rape Crisis England and Wales, the Centre for Women鈥檚 Justice, the End Violence Against Women Coalition, and Rights of Women.听

Under a new draft code of practice for requests for victim information,⁸ police forces in England and Wales should satisfy three criteria before requesting therapy notes. They must:听

1. Believe the third party holds the material being sought.
2. Believe the material is relevant to a reasonable line of enquiry.
3. Be satisfied that the material requested is necessary and proportionate in pursuit of a reasonable line of enquiry.听

CPS pre-trial therapy guidelines state that enquiries for therapy notes from the police should never be 鈥榮peculative鈥� 鈥� they must always follow a 鈥榬easonable line of inquiry鈥�.¹ In the draft version of the Act currently under consultation, sections 61 and 88(d) both reference this point. 听

The police should also provide the following four details to the therapist or counsellor as part of a request, in writing:听

• Details about the information being sought
• The reason why material is being requested
• How the material will be used once obtained
• The legal basis for the request.听

Problems also remain for therapists in the CPS guidelines on pre-trial therapy. Group therapy in which participants 鈥榝ocus primarily on and are required to share鈥� experiences related to offences is flagged with a warning over 鈥榯he potential for confusion, collaboration, undue and even unconscious influence and fantasy鈥� 鈥� no evidence or reference is cited for this assertion. Although rarer, hypnotic age regression (a specific type of hypnotherapy) is also singled out for a warning in the same category. The same goes for 鈥榙ebriefing鈥� (repeatedly recounting the details of a criminal offence). As long as these warnings put clients off particular modalities, clarity will be needed.听

听

Harriet Bland, solicitor

Better training听

Erene Hadjiioannou, a psychotherapist in Leeds and author of Psychotherapy with Survivors of Sexual Violence: inside and outside the room (Routledge), has worked as a trainer in pre-trial therapy since 2017 and is an activist in this field.听

In her experience as a trainer there are 鈥榟uge variations鈥� in practitioners鈥� awareness and understanding of the rules around how pre-trial therapy guidelines should be applied to therapeutic practice. Hadjiioannou herself says she hadn鈥檛 even heard that these guidelines existed until two years after qualifying. This is reflected in requests she receives for training, with some only approaching her when a disclosure is made, or once an investigation is underway.听

鈥楾here are lots of people who just aren鈥檛 aware of them,鈥� she says, 鈥榦r they are aware of them but it鈥檚 too intimidating to read the guidelines 鈥� which I understand, even though they鈥檙e actually really plainly written these days. So there are lots of practitioners out there who understandably might be coming at this from a pretty stressedout place.鈥� Equally some therapists and counsellors have done their own research. But either way, she says, much of her training is just about managing therapists鈥� anxieties around this work.听

It helps, Hadjiioannou says, that the CPS guidelines are not legally binding. Therapists can refuse an unreasonable request to hand over client records from the police or CPS, just as a client is able to refuse a request, however therapists must adhere to a court order.听

鈥業f a therapist isn鈥檛 aware of the guidelines, or maybe is less practised or confident in responding to a request for notes, you鈥檙e not going to get prosecuted for getting it wrong or taking your time to discuss a request with a client,鈥� she says. 鈥榃hen I鈥檓 training people, lots of therapists worry they鈥檙e going to break the law if they do this 鈥渨rong鈥�. That鈥檚 just another version of people鈥檚 鈥� sometimes quite healthy 鈥� fear of bureaucracy. I call it the policeman in the room.鈥櫶�

Erene Hadjiioannou, psychotherapist

After a request for notes from the police or the CPS, the most important thing to remember is for the therapist to support the client鈥檚 decision making, she says. 鈥榊our client should always be the first port of call,鈥� she says. 鈥楾here鈥檚 certainly some victims of crimes who will just say, 鈥淣o, I don鈥檛 want people to have access to my therapy notes鈥�. Equally I鈥檝e certainly worked with lots of clients who say, 鈥淚 want to feel I gave my case my all, and if that means sharing my data then I consent to that鈥�. It鈥檚 nuanced.鈥櫶�

Hadjiioannou spends time during training helping therapists get comfortable with notetaking practices. But, she counsels, therapists do not need to write notes perfectly 鈥� certainly not court-ready 鈥� and writing notes with the police in mind may actually create its own problems.

鈥楾here鈥檚 no need to radically change how you write notes if someone鈥檚 pre-trial, because we write notes for clinical purposes and not criminal proceedings,鈥� she says. 鈥業t鈥檚 something really important for therapists to consider: not replicating systemic discrimination against survivors. We shouldn鈥檛 be treating clients, or our work with them, differently on the basis that their notes might be used as evidence or they might choose to report. You never know if your notes are going to be requested, so therapists should start by considering how clinical notetaking is sufficient for that purpose, for all their clients, and end it there. Otherwise we鈥檙e playing a game we don鈥檛 need to play.鈥櫶�

9.5m 鈥榟eadline crime鈥� incidents 鈥� including theft, robbery and violence 鈥� estimated by CSEW² to have occurred from September 2023 to September 2024听

Byrne echoes Hadjiioannou鈥檚 advice: 鈥業 tend to take the sorts of notes that help me with my continuity of care. If I have concerns about things that I鈥檝e observed, things that I think will need to be addressed further down the line, or moments of insight about a course of action or intervention, that鈥檚 what I use my notes for. I don鈥檛 use them as a sort of faithful transcript of every session, and I don鈥檛 know many therapists who do so. From the police鈥檚 standpoint, the notes are pretty much useless as far as evidence is concerned. If you鈥檙e not taking a detailed statement from your client, and I鈥檓 pretty sure that as a therapist you are not, then you鈥檙e fine. Don鈥檛 feel the need to record things as if you are contributing to doing the police鈥檚 work. They take their own statements. You just keep writing what you need to care for the client.鈥櫶�

Lastly, Hadjiioannou says, if you share a client鈥檚 notes then leave room in the therapy to discuss how that comes into the transference. 鈥業 would say, if a client wants their notes to look different for what they would think is 鈥渟trong鈥� evidence, that might be distressing,鈥� she says. 鈥楤ut what is more routine and common is that the way that we are in the room with somebody is incredibly different from the very brief factual notes we write about the work. That鈥檚 something that comes up with lots of people, in lots of different circumstances. It鈥檚 completely ethical and appropriate for a therapist to give a bit of space in the work, to say, how is it to read what I鈥檝e recorded?鈥櫶�

Jill Swindells is a counsellor and social researcher who has delivered training on pre-trial therapy in and outside the profession. She highlights the importance of not just therapists鈥� own confidence in working with pre-trial clients but of supervisors鈥� familiarity with the law. 鈥楾he supervisor鈥檚 role is to be the clinical support to the therapist, so if supervisors can鈥檛 support them through working with a pre-trial client then they鈥檙e already unsupported,鈥� she warns. 鈥業f you鈥檙e working for an agency you would hope that the managerial supervisor is fully on board as well, so they understand the risks, benefits and pitfalls, and that the facilitators have all their policies, procedures and paperwork in place.鈥� 听

Jill Swindells, social researcher

Accessing support听

Harriet Bland is a solicitor for the Centre for Women鈥檚 Justice and has worked with victims of rape and serious sexual abuse since 2023. She welcomed recent legal changes, and her organisation was part of the 鈥楰eep Counselling Confidential鈥� alliance campaigning to bring them in.听

Bland and other campaigners say that the need to improve clients鈥� access to therapy has been paramount in this case. 鈥楾his change is a really important one in terms of making it easier for victims to access support and have that sort of trusted therapeutic space, but also we hope it will make it much easier for therapists to do their work,鈥� she adds. 鈥楩rom the client group I鈥檝e worked with it鈥檚 very clear that they鈥檙e often deeply, deeply traumatised by what they鈥檝e been through. There is a huge need for therapeutic, emotional and psychological support for them, as well as legal support. It鈥檚 so important that victims are able to access counselling without fear of notes of those most intimate and private conversations being exposed in a courtroom just because they tried to seek justice for what鈥檚 happened to them. I鈥檓 hopeful that this change can allow more victims to do that.鈥櫶�

Information requests

Between 8 April and 1 July this year, the Government ran a consultation seeking views on the new Requests for Victim Information Code of Practice. It was also designed to get a definition of what 鈥榗ounselling services鈥� means within this new code. While the definition is almost certain to cover 麻豆原创 members, it may also be pertinent for members to know who else might be affected by this legislation.

麻豆原创 welcomed the new law but is also seeking further clarity and safeguarding.⁹ The organisation wants complete confidentiality for accounts of sexual offences. 鈥楪uidance for requesting counselling records still needs to be clearer,鈥� says Jo Holmes, 麻豆原创 Safeguarding Lead. 鈥楢longside our campaign partners we are collectively asking for the victim鈥檚 account of the event to be added to the list of exemptions as to when counselling records can be requested. If this exemption is not explicitly stated such requests will continue, and victims will not be able to tell their therapists about what happened within a truly defined safe space, still fearing their records could end up in court. We need to ensure there are no legal loopholes. Without this amendment the higher threshold for requesting counselling records may not be met.鈥�

1m people a year are subject to rape or sexual assault according to CSEW estimates.

As part of the consultation 麻豆原创 proposed the definition of counselling to be, 鈥榮ervices provided by a person in a professional capacity, whether that person is paid or unpaid, registered or unregistered, who provides therapeutic and/or emotional support for the counselled person鈥檚 emotional, psychological and/or mental health鈥�. This broader definition aims to give service users greater choice over how, when and where to seek help, and to improve safeguarding for them whatever service they choose.

Protecting victims

The CPS published a five-year strategy to improve rape and serious sexual offences prosecutions in 2020, RASSO 2025.¹⁰ During this time it published a revised version of the pre-trial therapy guidelines, including directions for therapists, that changed practice for therapists and counsellors 鈥� the first time it had done so since 2002.

Although not statutory (and therefore advisory rather than legally binding), the guidance affirmed clients鈥� entitlement to therapy before, during and after trials, and that there was no requirement to delay therapy because of investigation or prosecution. Crucially it lifted any restriction on what can be discussed in therapy sessions, a clause that historically led to many survivors refusing 鈥� or being refused 鈥� support.

The new guidance under the 2024 Act raises the threshold for police seeking access to notes, but as campaigners say, the law could (and arguably should) go further to protect victims by requiring police to have a judge approve requests for notes.

In the meantime a confident and well-prepared therapist can do much to empower their clients and build therapeutic alliances.

鈥業t can sometimes strengthen the relationship,鈥� Hadjiioannou says.

鈥業f you鈥檙e handling this confidently and competently you鈥檙e with them, and alongside them, a bit more in the process.鈥�

*Name changed to protect privacy.

**The consultation closed on 1 July and although there is no official date scheduled, campaigners hope to see the results published by the end of 2025. At the time of going to press 麻豆原创 was still waiting on the results of the consultation on the victim information requests code of practice.

听

Jo Holmes, 麻豆原创 Safeguarding Lead