Ann Graves (Dublin Fingal East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

694. To ask the Tánaiste and Minister for Justice and Equality if there is no doctor client privilege when using counselling notes in court cases involving sexual assault, abuse, violence, and rape (details supplied); if he will consider introducing legislation to ensure counselling notes can no longer be used in court cases; and if he will make a statement on the matter. [16667/25]

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

At the outset it is important to state that there is no absolute privilege when it comes to the disclosure of medical records. It is for the court to decide what material is relevant to the case and what should be disclosed.

Doctors’ notes are regularly disclosed at trial and doctors called to give evidence.

The disclosure of counselling records is a complex and highly sensitive balancing of individuals' rights.

On the one hand, there is the victim’s right to personal privacy and on the other, the accused person’s right to a fair trial as it is very important that the court knows about anything that could affect the outcome of the criminal trial.

However, because of the risk of re-traumatisation of victims of sexual offences specifically, the law was substantially reformed in 2017 by the insertion of a new section 19A into the Criminal Evidence Act 1992.

Section 19A created a new process by which a victim can consent or object to the disclosure of their counselling notes.

In instances where the victim objects to disclosure, the trial judge will decide whether the records should be released; taking into account the right of the victim to privacy and the risk of re-traumatisation, while ensuring the constitutional right of an accused person to a fair trial and access to any material of evidentiary value to the defence is upheld.

Regrettably, this provision has not operated in practice as intended.

Given the importance of the issue of the disclosure of counselling notes to victims and survivors, the Third National Strategy on Domestic, Sexual and Gender-based Violence committed to examining and reviewing the issues again, including a victim/survivor perspective.

To progress this important work, an inter-departmental working group, led by the Department of Health, was established last year.

My Department participates in this working group alongside other stakeholders including, importantly, stakeholders from the sexual violence NGO sector who will ensure collaborative input from vital victim/survivor services is taken into account.

I have asked my officials to examine this legislative provision again. Any changes to the law must be very carefully considered to avoid the risk of a constitutional challenge on the right to a fair trial. I am aware of concerns expressed by victims and our NGO stakeholders and have asked my officials to finalise this work and present proposals quickly.