Concerns over delays to s.19 amendment

Last year we wrote about the difficulties created by s.19 of the Criminal Evidence Act 1992 and the trauma of sexual assault victims who face the prospect of their counselling notes being called on by the defence at trial. The outgoing government last summer promised to amend this law to give more confidence to sexual assault victims and their counsellors.

Worryingly, it has been reported in the media over the weekend that the promised amendment has been delayed and that an outright revocation is now in doubt. Government sources have told the Journal that while addressing the issue remains a priority, concerns have been raised that an outright revocation may impede an accused’s right to a fair trial. While the circumstances where counselling notes may be called may be narrowed by any amendment, any change short of an outright repeal is unlikely to dispel the perception amongst victims of sexual assault that their counselling notes will be exposed in court.

Notes and a patient’s medical record are fundamental to any patient or health care service user’s continuity of care. Notes and records are a vital aide memoire to the healthcare professional, allowing them to document and track their patient’s care, facilitating the drafting of care plans, referral letters, or reports. Notes and records are necessary to ensure continuity of care where care is shared or handed over to another professional.

S 19 has the very real effect of placing the counsellor in the impossible position of fearing that any notes that they may keep may potentially be turned over to the defence in a criminal trial. Anecdotally this has led to many counsellors taking bare bones notes, or in many cases, no notes at all. This can result in continuity of care complications and potentially places the counsellor in any ethical quandary, as documentation and record keeping is a central part of most profession’s code of conduct.

More seriously, the existence of S.19 is said to have a deterrent effect on some sexual assault victims on reporting their assault to the Gardai. An amendment of s.19 may further limit the circumstances where notes may be used in court but it’s very existence, even in watered down form, may be enough to deter victims from coming forward in the first place.

Author: Alex Nichol, Solicitor, BCL, LLM, Dip Corp. and La Touche Training Program Developer and Trainer