Guidelines on Pre-Trial Therapy and Notes Disclosure

Tees Esk and Wear Valleys NHS Foundation Trust follows the Crown Prosecution Service (“CPS”) Pre-Trial Therapy Guidance (CPS, May 2022).
In addition, for the purpose of processing personal data and therapy notes disclosure Tees Esk and Wear Valleys NHS Foundation Trust may follow the legal bases provided by UK GDPR at Articles 6(1)(e) and 9(2)(g). We do not rely on consent for the disclosure of personal information to the police.

Accessing therapy 

                                          
The CPS pre-trial therapy guidance (“Guidance”) says that your health and wellbeing should always be the key factor in deciding whether, when and with whom you access therapy services in the time period before your case (may) go to court. We say ‘may’ because we know there can be a lot of uncertainty about whether and when cases go to court, and this can be stressful and distressing.
The Guidance says that it is for you to make decisions about therapy with your therapist, including what type of therapy you access and when you have it. Criminal justice practitioners (the individuals who are employed to provide support to people who have experienced a crime), the police or the CPS, should play no role in that decision-making process beyond alerting you to the availability of therapy.
The Guidance says that it is important that anyone who has experienced a crime is aware that they can access therapy to support their emotional and psychological needs before, during and after any potential case going to court. There is no requirement to delay therapy because there is an ongoing police investigation or prosecution.
It is important to be aware that the police or the CPS may request access to your therapy notes in the event they are relevant to an ongoing investigation. Your rights in this area are explained further in the next sections.

Looking after your information  

                                                                       
Therapists must understand and comply with all relevant data protection legislation and should follow applicable guidelines when processing personal data (which means information from which you can be identified) generated in appointments.  ‘Data protection legislation’ are the laws that describe how any personal information held about you must be looked after (e.g. kept private and stored securely).
Therapists must be transparent at the beginning of therapy about how your personal data will be held and processed, including the fact that information provided to them or recorded by them may be disclosed to police and used as evidence under specific circumstances, and your right to object to data processing. You may provide your consent to share information with law enforcement agencies such as the police, or exercise your right to object. However, if consent is not provided or you have objected to the processing of your data for this purpose, we will take this into consideration as part of our assessment as to whether the provision of your notes to the police is necessary and proportionate. This is in line with the Trust’s Requests for Information procedure. You should receive a copy of the Trust’s Privacy Notice at the start of your therapy which explains this further.

Requests from the police to access therapy notes

The Guidance states that if the police request access therapy notes, it is best practice for them to first ask you if you have received any therapy since the crime occurred and whether the incident was discussed. However, if they consider it would be beneficial to obtain a copy of your notes while exercising their statutory law enforcement functions, they should:
Ensure that obtaining your notes is a “reasonable line of inquiry”. A reasonable line of inquiry means that the investigator suspects that the notes may contain material which is relevant to the investigation or the likely trial issues and would be necessary to build their case. Police are not permitted to speculate and must have a specific reason that leads them to believe that review of your notes represents a reasonable line of inquiry. 
Ask Tees Esk and Wear Valleys NHS Foundation Trust if there is any material in your therapy notes that matches their request.
Tees Esk and Wear Valleys NHS Foundation Trust will ask for evidence from the police that their request for your notes is ‘a reasonable line of enquiry’ and necessary and proportionate for law enforcement purposes.
Tees Esk and Wear Valleys NHS Foundation Trust will assess and inform the police that the notes: 1) will not be disclosed if the data sought is not specific enough and/or there is no rationale for seeking it, or 2) will be released either in whole or in part pursuant to the UK GDPR and the Data protection Act 2018.
If the information request from the police meets the necessary requirements, we will contact you to inform you that we have received this request and the decision we have made, unless, notifying you would likely prejudice the law enforcement purposes.
The notes are then reviewed by the police and the CPS and may be disclosed to the defence -if they meet the disclosure test.  The disclosure test means material must be disclosed if it might reasonably be considered capable of undermining the prosecution’s case against the accused or of assisting the case for the accused. This link to the Crown Prosecution Service website explains this in more detail.
 
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