Legal Issues in Counselling & Psychotherapy

Peter Jenkins

• Publisher: SAGE Publications Ltd
• Year: 2002
• ISBN:
  9781446231302
• Edition: 1
• Topic: Psicologia
• Subtopic: Storia e teoria della psicologia

`This is an excellent book. It builds well on Peter Jenkins? admirable earlier contribution to our knowledge of the many legal matters that are of vital concern to counsellors ( Counselling, Psychotherapy and the Law, SAGE 1997) It is mY intention, as a counsellor and lecturer to make Peter Jenkins? new book required reading for all our students. Indeed I would go as far to say that all counsellors, not matter how experienced they consider themselves, should consider this book as essential reading. As the advert says, "don?t leave home without one!" - Norman Claringbull, Counselling at Work

`This is good value for trainees and experienced practitioners alike, provoking reflection and providing a useful reference source? - Sally Scott, Healthcare Counselling and Psychotherapy Journal

Counsellors and psychotherapists are increasingly seeing the impact of legal issues on their practice and yet many feel under-prepared for the challenges they have to face. Legal Issues in Counselling & Psychotherapy is a much-needed source of advice and reference which examines the rapidly growing range of situations in which therapists find themselves in contact with the law - in their everyday practice, in specialist work, or when facing a legal case against them.

The first part covers the current legal context of therapeutic work including confidentiality, contracts, data protection and court reports. Chapters include: defining work by leading writers from the therapeutic and legal worlds, as well as an illuminating account by a client who brought a successful case against her therapist.

Some areas of therapeutic work are particularly circumscribed by legal issues and the second part examines the specific implications for therapists in relation to:

- working with survivors of sexual abuse

-working in legal settings

-false memory

-the Human Rights Act.

Looking to the future, the book also examines the implications of professional regulation for all counsellors and psychotherapists.

The need for counsellors and psychotherapists to be well informed about the law is rapidly growing. Legal Issues in Counselling & Psychotherapy therefore provides access to essential information which will be of great value to trainees, practitioners and supervisors.

Part One

THE LEGAL CONTEXT OF THERAPEUTIC PRACTICE

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1

Confidentiality: A Case Study

Stephen Palmer

I’ll start by setting the scene. I’m an experienced counsellor, counselling psychologist and psychotherapist. At the time of the case study, I was active in the British Association for Counselling and Psychotherapy and aware of all the codes of ethics. As I had previously edited the BACP journal, Counselling, and sat on the publications committee, I was up-to-date with current thinking regarding most aspects of counselling.

I practise cognitive, rational emotive behaviour, and multimodal therapy. In these forms of therapy, we usually encourage the therapist to record sessions to aid supervision. In addition, to enhance the psycho-educational nature of therapy, we would normally suggest that the clients record the sessions for their own benefit. In the comfort of their home, they often listen to the sections where they are given guidance on problems such as managing panic attacks or completing automatic thought records.

At the Centre for Stress Management where I practise, we have referrals from a number of health professionals, commercial and voluntary organisations. Clients can also contact us directly. Prior to therapy, we send the client general information about the centre, the therapy and a client checklist (see Palmer and Szymanska, 1994a; revised 1994b). As we are concerned about client exploitation, we developed this checklist to help potential clients focus on what to expect in therapy and what to ask their therapist about during the first session.

Case study

The therapy

An occupational health department of a commercial organisation referred Mary (not her real name) to us. Whenever this company had a member of staff who was stressed due to personal or work issues, they offered them about six to eight sessions of counselling financed by occupational health.

Mary’s case started out no differently to the earlier clients from this organisation. She had received our details and checklist and we started the first session by her signing a simple contract clarifying fees and cancellation notice. We discussed issues relating to confidentiality. When third parties are involved such as occupational health departments it is very important to obtain explicit permission from clients as to the limits of confidentiality. We agreed that it would be helpful if we recorded the counselling sessions both to enhance my supervision and to aid her understanding of topics covered. At this time, there would have been nothing to suggest that a court case may be pending. If there were, I would not normally suggest recording the sessions.

The onset of therapy coincided with increasing relationship difficulties. Unfortunately, after a number of sessions, she had to cease counselling temporarily. As her problems with her ex-partner were escalating, and because she considered herself at some personal risk, it was agreed that it would probably be useful for me to keep both sets of the audiotapes of our sessions. I was concerned that she may need to refer to the discussions of recent life events and the audiotapes would serve as good reminders. This decision was recorded in her client notes.

Some months later she returned to counselling; at the same time, the police decided to prosecute her ex-partner. With her permission, I provided a written statement regarding the extent to which a number of incidents had affected her. This was quite straightforward as I had seen her before she had started encountering problems with her partner. I was concerned that if the Crown decided to prosecute then the defence would subpoena my client notes. My records included a range of typical personal issues that are often discussed in counselling which were not directly related to her ex-partner but could be misinterpreted by lay people or perhaps intentionally by barristers. I was also very concerned about the effect having such personal details read out in court could have upon her mental condition. She was led to believe by the investigating officer that only my statement would be referred to in court. I did not believe that this would be the case but the investigating officer assured me that this would be so. Her ex-partner was subsequently arrested for grievous bodily harm and burglary.

Prior to my appearing in court, I spoke to representatives of the British Association for Counselling and Psychotherapy (BACP), the British Psychological Society (BPS) and my insurers, Smithson Mason, regarding my legal position with special reference to the issue of confidentiality. It was suggested that I should raise this issue in court with the judge; all were unanimous in advising that an order of the court must be obeyed.

I decided to prepare for the court case by watching the training videos regarding court appearances that can be hired from the BPS (1995). These were excellent and I would recommend that other therapeutic professional bodies have a set for hire.

In court:

We did not get off to a good start. Both the defence and prosecution barristers wanted me to refer to my original clinical notes in court. As I suspected, and despite the reassurances of the investigating officer, my original statement was not going to be sufficient.

When I raised the issue of confidentiality, the prosecuting barrister representing the Crown told the judge that this was not an issue as far as she and Mary were concerned. After some debate between the three of us, the judge told me to continue. As far as I was concerned, this was an important part of the proceedings regarding confidentiality. The implications would be that the court could, technically speaking, photocopy my notes as evidence. At this point, I wanted to confirm that I had been formally instructed by the judge to refer to my clinical notes. I turned directly towards the judge and asked him the following question. ‘Your Honour, are you instructing me to refer to my notes?’ He replied, ‘Yes’. I sensed that he was becoming somewhat irritated.

During the lunch break, the investigating officer photocopied all of my clinical notes. I brought to the prosecution barrister’s attention the type of topics that Mary had discussed during counselling sessions which had been recorded in her notes. As far as I was concerned, these were not directly related to the court case but could be misinterpreted. The prosecution barrister then understood my resistance in referring to my notes. After lunch, in a closed session, she asked the judge if Public Interest Immunity could be applied to a number of Mary’s notes; the judge adjourned the court to enable him to read the relevant notes.

It is worth noting that I was advised not to contact my client as this could prejudice the case. Over the weekend, as I was re-reading my client’s notes, I became aware of the frequent reference to our audiotapes of the sessions. I would record in my notes whether Mary had listened to them or not and her general comments about the previous session. I decided to take further advice from BACP, BPS and CareAssist (the providers of my insurance scheme’s legal helpline). The legal representative of CareAssist said that, even though I was only asked for my notes, my audiotapes were also relevant material especially as they were referred to in the client’s notes. If I did not mention the tapes then the court might consider that I was deliberately withholding clinical evidence. They suggested that I should tell the prosecution barrister about them and also state my view that their use in court might cause my client psychological harm. It was emphasised that it was wrong to destroy records and pretend that they did not exist. This is not allowed and may lead to a charge of perverting the course of justice or to contempt of court.

In court, the judge ruled that if the client gave her permission for their use, then they would be used. The Crown implied that they would drop the case against her ex-partner if the tapes were not used. The client was left with Hobson’s choice and, after a great deal of anguish, she finally gave her permission for their use. Even though we were both sitting outside the courtroom, I was not supposed to talk to her about any issue relating to the court case even though she was very distressed and I was her counsellor. Later that day I arranged via her occupational health department for a BACP Accredited Counsellor to support her through this difficult period.

The court support services had to arrange for sets of copies to be made for both the defence and prosecution barristers. I ensured that I received a receipt for the tapes from the investigating officer on behalf of the court and reminded the relevant staff of the confidential nature of the tapes.

The court was adjourned again to allow the barristers to listen to the tapes. After listening to the tapes, the Crown dropped their prosecution. However, my job regarding the materials had not quite finished. As soon as the case was discharged, I immediately followed the prosecuting and defence barristers back to their rooms and obtained their copies of both the clinical notes and the tapes. I also secured my original tapes back from the court. Again, I kept my insurance brokers informed of the outcome in case there was a claim. At no time were my client’s personal details discussed with third parties, only the legal issues surrounding the case such as confidentiality, apart from explaining to the prosecuting barrister why Public Interest Immunity would be strongly preferable regarding certain client notes that she had in her possession.

The aftermath

The outcome for my client was not satisfactory as the defendant was discharged. However, she did experience fewer difficulties with her ex-partner. She was very upset about how the court had treated her and about the realisation that we had probably made an error, both when we decided to keep the audiotapes to remind ourselves of the series of incidents, and in accepting the investigating officer’s word that other material would not be used. We both thought that educating therapists about some of the issues involved might be a positive step and I later put this into action.

I wrote a number of articles with Mark Scoggins, a solicitor, and Dr Roger Litton, the Smithson Mason representative who administered the BACP and BPS members’ Professional Liability Insurance Scheme (e.g. Scoggins et al., 1997; 1998a; 1998b). These were republished in a number of journals and within the profession received a fair amount of publicity. I received letters and telephone calls from BACP and BPS members who explained their current difficulties regarding court cases, confidentiality and the law. I realised that many practitioners were not aware of the complex issues and in addition, had overlooked their responsibility to themselves and the profession. Some examples involved:

• Not taking legal advice on their own behalf in case they breached confidentiality;
• Not realising that they did not have to answer questions of a confidential nature unless instructed by the judge;
• Sending client notes to solicitors without obtaining a client waiver;
• Not being personally insured for professional liability and assuming their employers would protect them;
• Believing that it was acceptable to pervert the course of justice by destroying client notes or withholding relevant information;
• Keeping two sets of notes, a full set and a set for court;
• Intending to refuse to answer questions in court even if directed by the judge to answer them.

This brought to my attention the need for practitioners to receive more formal training in these issues while attending counselling and psychotherapy programmes. However, even experienced practitioners seem blissfully unaware of the many different aspects involved.

On a personal note, as we (SP and Mary) decided the case should be written about so as to inform and educate other practitioners, I have found it difficult to put the experience behind me as I am still asked to write or run workshops about confidentiality and the law. Sometimes therapists want to discuss similar issues when they meet me at conferences and often refer to the case. I know Mary would prefer to put the case behind her too.

This case study is published with the permission of the client

Acknowledgements

I would like to thank the BACP, BPS, Dr Roger Litton at Smithson Mason and CareAssist for the advice and support I received during the court case regarding confidentiality and the law. I would like to thank Mary for giving me permission to write about the case once again.

References

British Psychological Society (1995) Expert Testimony: Developing Witness Skills. (Training Video) Leicester: BPS.

Palmer, S. and Szymanska, K. (1994a). How to avoid being exploited in counselling and psychotherapy. Counselling, 5(1): 24.

Palmer, S. and Szymanska, K. (1994b). A client checklist for clients interested in receiving counselling, psychotherapy and hypnosis. The Rational Emotive Behaviour Therapist, 2(1): 25–7.

Scoggins, M. Litton, R. and Palmer, S. (1997). Confidentiality and the law. Counselling, 8 (4): 258–262.

Scoggins, M. Litton, R. and Palmer, S. (1998a). Confidentiality and the law. The Rational Emotive Behaviour Therapist, 6(1): 18–30.

Scoggins, M. Litton, R. and Palmer, S. (1998b). Confidentiality and the law. Counselling Psychology Review, 13(1): 6–12.

2

Psychoanalyst Subpoenaed

Anne Hayman

When I was subpoenaed to give evidence in the High Court about someone who was alleged to be a former patient of mine, I was placed between two conflicting moral obligations. I had to decide whether to obey the law or to abide by the rules of professional conduct. I complied with the subpoena by attending court, but I decided I could not answer any questions about the ‘patient’, and I made all arrangements, including having a barrister to plead in mitigation of sentence, for the possibility that I sho...

Table of contents

• Cover Page
• Copyright Page
• Contents
• List of Contributors
• Acknowledgements
• Introduction
• Part I: The Legal Context of Therapeutic Practice
• Part II: Legal Challenges for Therapy
• Appendix 1 The Academy of Experts: Model form of Expert’s Report
• Appendix 2 Therapy notes and the law Stephen Jakobi and Duncan Pratt
• Appendix 3 Relevant organisations
• References
• Index