Bulletin 23 - Protected confidences - school counsellors and records of victims of sexual assault
Legal issues bulletin 23 - Protected confidences - school counsellors and records of victims of sexual assault
Legal issues bulletin 23 - Protected confidences - school counsellors and records of victims of sexual assault
Please wait while page index is generated
This bulletin provides updated advice on issues concerning counselling communications involving victims of sexual assault as a result of amendments to the Criminal Procedure Act 1986 (the Act) which commenced on 14 January 2011. It includes advice on how to respond to requests for the production of counsellor files that may contain protected confidences. Staff should refer to legal issues bulletin 25 - Subpoenas for the relevant procedures to be followed when served with a subpoena to produce other department documents or to give evidence.
In broad terms, a protected confidence is a communication in confidence between counsellors and victims of sexual assault.
The Criminal Procedure Act 1986 indicates that:
A person “counsels” another person if the person has undertaken training or study or has experience relevant to the process of counselling people who have suffered harm and the person listens to and gives verbal or other support or encouragement to the other person or advises, gives therapy to or treats the other person.
It is a broad definition and it means communications between victims of sexual assault and school personnel other than specialist counsellors may be subject to the protected confidence provisions.
“Harm” includes any actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm, such as shame, humiliation and fear.
There are a number of specific protections arising from the Act, namely:
When a subpoena is received, the following steps should be taken:
“Material has been withheld from production as no indication that leave of the court, in accordance with Division 2 of part 5 of the Criminal Procedure Act 1986, has been given for the issue of the subpoena.”
A copy of the letter sent to the court should also be sent to the solicitors upon whose application the subpoena was issued. Alternatively, the solicitors can be contacted by telephone or email and advised of the action taken.
The legislation is not clear on what action, if any, is to be taken by a person who receives a notice that leave is being sought. Staff are advised to just identify any documents held that may be captured by the notice and await further advice.
No steps should be taken to forward any material to the court or any other person until further notice or a formal request is received from or on behalf of the presiding Judge or Magistrate to provide the information to him or her for the purpose of determining the leave application. Staff should contact Legal Services for further advice if necessary.
Again, it is not clear how the provisions of the new legislation will operate where a confidential statement in sought in respect to an application for leave to issue a subpoena. In view of the fact, the person making the statement is required to provide advice on the likelihood of harm if the material is provided, it is likely that in most instances, the statement will be made by the school counsellor.
School counsellors should consult with their District Guidance Officers in relation to the preparation of any confidential statement to be made. Depending on the circumstances, it may also be appropriate to contact Legal Services or the department’s Student Welfare directorate for further advice.
Depending on the circumstances, it may be appropriate to contest the production of the material in court. This would arise if departmental staff are of the view that serious harm may result to a student who has been a victim of sexual assault and his or her counselling file or other documentation is produced to the court. If counsellors or other staff, after consultation with the District Guidance Officer or other line supervisors, believe this to be the case, contact should be made with Legal Services to further discuss the options available.
As part of preparing a brief of evidence for use by police in court proceedings, staff may sometimes be asked to provide a statement outlining their knowledge of a particular matter. These briefs are generally made available to the defendant in the proceedings.
As a general rule, staff should respond positively to such requests from Police or officers from DCJ.. However particular care should be taken to avoid making any statement which reveals material which falls within the meaning of protected confidence. For example, while it may be appropriate to indicate in a statement that you have had a discussion with a student, it would be inappropriate to then give details of the content of that conversation.
Staff should keep in mind that while they should be supportive of police requests, there is no obligation to include any particular information in a statement. Though police may raise concerns about declining to include information relating to a protected confidence, it is a matter that is ultimately at the discretion of the person making the statement.
If staff are asked to sign a statement that has been prepared by police, they should only do so if they are completely happy with its contents. If it contains protected confidence material, staff should ask for that particular information to be deleted before signing the statement.
School counsellors are advised to consult with their Senior Psychologist Education about any concerns which arise when asked to make statements that potentially reveal protected confidence material. Other staff are advised to consult with the department’s Legal Services prior to providing any statement.