It’s hard to avoid all the stories about therapy notes in the media at the moment. I’m glad of it really, glad that we’re talking about it. Every seasoned therapist has, I imagine, experienced the gut wrenching realisation that we haven’t been told about a sexual assault or rape because our client, current, prospective, maybe past, has a well-grounded concern about how her (usually) notes could be used in court.
For many women who have been raped, the hardest words are not spoken in courtrooms. They are spoken, slowly and painfully, in the therapy room.
Or, as I suspect is happening more and more, they are not spoken at all.
Increasingly, survivors are making a calculated decision to withhold details, to soften the truth, or to avoid therapy altogether. Not because they do not want to heal, but because they are afraid. Afraid that the most intimate record of their trauma – their therapy notes -could one day be demanded, dissected, and used against them.
Therapy is supposed to be a place of safety. A space where a woman can unravel what happened to her without performance, without cross-examination, without the pressure to be consistent, composed, or credible. But when the law allows private therapeutic notes to be accessed in legal proceedings, that safety fractures. Healing becomes conditional. Disclosure becomes risky.
This is the second violation: not the assault itself, but the quiet knowledge that seeking help may expose you all over again. This time publicly. With a scrutiny that is in and of itself traumatising.
The societal problem underpinning all of this is that women are still held accountable for mens’ actions. This is all-pervasive, not just when it comes to sexual assault and rape. We all know it, and the defence team in court know it too. All they need do is plant a little question about the character of the victim, maybe pass her knickers around the courtroom, comment that maybe it wasn’t a very serious rape, (!!) talk about her alcohol intake, her sexual history, and a host of other irrelevant details, and the whole case can unravel.
All too often, the media highlights cases where the criminal justice system has failed survivors, sometimes profoundly so. Without naming names, the pattern is familiar: delayed investigations, evidence that might never see a courtroom, and the additional trauma inflicted when private disclosures are weaponised or exposed. These stories are a stark reminder of why therapy must remain a place where disclosure does not carry the risk of a second violation. If survivors cannot trust their therapist’s notes to be private, the very foundation of care, and the hope for healing, is eroded.
Meanwhile, the perpetrator may receive a reduced or suspended sentence – he didn’t “really hurt” her, he has a “bright future,” a “promising career,” he can hold down a “good job”. (These are things that have been said by judges in Irish courts – in this century). Or worse, acquittal. Insufficient evidence. Sometimes, as we saw this week, there is even an offer of psychological support for the offender. The victim, meanwhile, may endure abuse online and in real life, and will almost certainly carry a lifelong erosion of worth with adequate support. And that is if the case even reaches court, which, as we know, many do not.
But to think that a woman (usually) who is raped decides not to talk about it in the safe space of therapy because her fear of her notes being used to commit a second, third, fourth assault on her is just appalling. There is no word big enough for this injustice.
While my accrediting body and others are working hard and advocating for reform, this for me is a moment for clarity about our professional obligations. There is currently no specific statute in Ireland that creates a general legal duty for psychotherapists or counsellors to keep notes. This was brought my attention at a recent training. However, obligations arise contractually and professionally: insurers require contemporaneous notes as a condition of professional indemnity cover, and accrediting bodies such as IAHIP (my own), IACP, ICP, and PSI require appropriate records under their codes of ethics and practice. Failure to maintain adequate notes could therefore expose a therapist to professional sanction or invalidate insurance. I’ve linked to those sites in the piece linked below)
What remains deeply concerning is not whether notes are kept, but how easily intensely private therapeutic material can be sought in criminal proceedings. That is the fault line we must address.
We cannot control enquiries and decisions made in the courtroom. We cannot control defence strategy. But we can control how much unnecessary vulnerability we embed in our files. This is not about evasion. It is about proportionality. It is about ethical minimalism.
It is about remembering that the primary duty of care is to the person sitting in front of us, not to a hypothetical future cross-examination.
Supervision conversations about note-taking should now be standard. Training institutions must address it explicitly. Silence on this issue is no longer neutral – it is complicity.
We are living in a system that routinely asks survivors of all ages to choose between safety and truth, between healing and legal exposure. That choice should never exist. As therapists, we are in a position to protect the dignity of the people who come to us in unimaginable pain. We must take that responsibility seriously and with deliberate care, with principled practice and with fierce advocacy for reform.
Silence is not acceptable. Complicity is not neutral. Our clients deserve better.
Below is the link to my note taking policy. Feel free to copy and paste/edit/suggest edits to me.