Paula Butterly (Louth, Fine Gael)
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121. To ask the Tánaiste and Minister for Justice and Equality if he will commit to the removal of the provision that allows counselling notes to be used in all legal proceedings in the proposed general scheme of the Criminal Law and Civil Law Bill 2025; and if he will make a statement on the matter. [25015/25]

Paula Butterly (Louth, Fine Gael)
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I welcome the news that the general scheme of the criminal law and civil law Bill 2025 has now received Cabinet approval. Will the Minister commit to the removal of the provision that allows for counselling notes to be used in all legal proceedings?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Deputy for her question. One of the most difficult things I have to do as Minister for Justice, and indeed, that the House has to do, is to resolve issues around balancing conflicting constitutional rights. This is an issue where there are conflicting constitutional rights that need to be balanced but, as the Deputy indicated, that balance needs to be shifted legislatively in the near future. The balance of rights is twofold. On one hand, there is the right to privacy that people have in counselling notes when they go to a counsellor or psychologist and provide private information about their lives to that counsellor or psychologist. At first principles, we all assume that information will be kept private. On the other hand, there is the right of individuals to a fair trial if they are being prosecuted for a serious criminal offence that could result in them losing their liberty. We tried to balance these two rights in respect of the disclosure of counselling notes in 2017 in the sexual offences Act enacted then. Unfortunately, that Act did not achieve what we had wished to achieve. I want to amend section 19A of the legislation, and obviously it is up to the House as to whether that should happen, through the removal of subsection 17, which gives an entitlement to a complainant to waive their entitlement to object to the disclosure of counselling notes. I also wish, subject to advice from the Attorney General, to amend subsection 11 of section 19A by removing paragraph (a). The effect of these changes would be very beneficial. It would mean that if a person accused on an offence wanted access to counselling notes there would have to be a hearing in advance of the trial to determine whether he or she was entitled to them. The judge would have to look at them. There would not be an opportunity for a complainant to say that he or she would waive their right to objection. A judge would also only say that the notes had to be disclosed to an accused in circumstances where the judge thought a fair trial would not be possible if they were not disclosed.

Paula Butterly (Louth, Fine Gael)
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I thank the Minister for that comprehensive answer. I understand fully the conflict he will face in trying to balance these rights. However, I want to point out the purpose of counselling notes. These notes are confidential. The are about helping victims on the road to recovery following a very traumatic and harrowing experience. The very idea that these notes could be exposed to the accused side, or indeed be used by the DPP to prove a case, is traumatic for them. Many counsellors, groups and victims have come to me and expressed their horror that this could continue again and again. Many have pointed out how this could impede victims coming forward. While I understand the balancing of rights is necessary to have a fair trial, I do not believe counselling notes have any place within a trial. Indeed, a recent Supreme Court judgement said there was no basis for the introduction of these notes on the basis of relevance.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I read that Supreme Court decision. One of the points mentioned by the court through Mr. Justice Collins was it was surprising that since 2017, when section 19A was enacted, there has not been a reported judgement on the hearing that should take place in respect of the challenge to counselling notes. I agree with the Deputy that it is very traumatic for someone to know that confidential counselling notes could be made available for the purpose of the defence of a criminal trial. None of us would like to see our medical records, let alone counselling notes, disclosed in a public realm.

That is why I intend to change the law. The changes that are being advocated will be of huge assistance to the individuals who say to the Deputy they are concerned about the trauma of being required to disclose counselling notes. At present, too many notes are being revealed unnecessarily. It has become a bit of a fishing expedition. That will stop. The only occasion upon which counselling notes will be disclosed, after the law is changed, will be if a court believes that if they are not disclosed, it would result in an unfair trial.

Paula Butterly (Louth, Fine Gael)
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I fear I am being repetitive on this issue. However, I am very passionate about it because I am aware of the trauma it causes victims. While I understand the legislation will give power to the judge to use his or her discretion on whether to allow these documents to be accessed by any defence team, it will be very subjective. It will put the victim in the position, prior to any trial, of entering into the zone of the unknown and potentially having his or her details relived in court. That in itself could be an impediment to a victim getting justice at a trial and coming forward.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Deputy is not being repetitive. On the intention of the proposed change, what will happen is a judge will look at a counselling note and make a decision on whether there is anything of relevance in it where, if it is not disclosed, it would result in an unfair trial. In most situations, it is highly unlikely that disclosure would then occur. However, what I cannot do, and I know some people want me to ask the Oireachtas to do this, is just have a blanket ban on disclosure of a certain category of documentation or certain type of evidence. If I did that, it would undermine the interests of victims of sexual violence more. It would mean there would be challenges to convictions. It would put a blanket ban on certain types of evidence. It has not been done previously and I have been advised by the Attorney General that it would be subject to, most likely, a successful challenge in the courts. That is something we have to be very hesitant about going down the avenue of, notwithstanding the requests of people to do so.