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As the Oireachtas prepares to sign off on landmark reforms governing the use of counselling records in criminal proceedings, survivors and mental health professionals say the legislation still falls short.
Here, Paula Doyle, a survivor and advocate, and Lisa Molloy, chief executive of the Irish Association for Counselling and Psychotherapy, argue that no person who has experienced sexual violence should ever have to choose between accessing therapy and seeking justice…
AS IRELAND MOVES closer to reforming how counselling records are treated in criminal proceedings, there is an opportunity to address a longstanding injustice that has forced many survivors of sexual violence into an impossible position: protect their privacy and access support or pursue justice through the courts.
While we welcome the positive amendments within the Criminal Law and Civil Law (Miscellaneous Provisions) Bill, specifically the removal of the Section 19A(17) waiver, tighter judicial gatekeeping, and mandatory legal aid for survivors facing disclosure applications, relying on judicial discretion does not go far enough.
Standing with advocates, professional bodies and mental health professionals, we continue to call for a total ban on the use of counselling in court cases.
We have joined together to push for real reforms as no survivor should have to choose between healing and justice. For years, survivors pursuing justice have faced the possibility that their private counselling records could be sought by defence teams and scrutinised in court. These records often contain deeply personal reflections, fragmented memories, emotional responses and explorations of trauma. They are not created as evidential documents. They are created to support recovery.
The possibility that these notes may later be disclosed in a courtroom fundamentally changes the therapeutic relationship. Survivors may hold back from speaking openly. Some may avoid discussing certain experiences altogether. Others may decide not to engage with counselling at all, fearful that the very support they need could later be used against them.
This matters because counselling is not a peripheral support for survivors of sexual violence. It is often central to recovery. The ability to speak freely, confidentially and without judgment is one of the foundations upon which healing is built.
When that confidentiality is placed in doubt, the consequences extend far beyond the courtroom. The message received by many survivors is that seeking help may come at a cost.
For survivors, this issue is not abstract. Paula’s experience shows what is at stake…
As someone who has experienced the criminal justice process firsthand, I know just how difficult it can be to come forward. Yet one of the most distressing aspects of that process was having my counselling records brought into the courtroom.
I had gone to counselling, not by choice as such, but to survive because I had no other option. It was either; give it a try or die.
My counselling were supposed to be my place where I could begin to heal my broken life, to process the trauma and in my case save my life. My 4.5 yrs of sessions before trial were filled with flashbacks, triggers, suicidal thoughts and a time in my life when my nervous system was on constant high alert.
Instead, my counselling notes were taken and used in court. My healing journey and survival responses were presented in court by the defence as inconsistent, unreliable and that I was unstable. The notes that were used were of no reference to the actual rape but fragments of my new broken existence that would be used by the defence to discredit me on the stand as a woman, a partner and a mother.
Healing should not be a liability. The government cannot claim to support mental health while allowing trauma symptoms amongst others to be weaponised. If a justice system forces victims to weigh up their mental health against the risk of public exposure, then the system is not balanced, it is broken. It is a justice system that is creating fear around healing.
This is bigger than all of us. This is not just a women’s issue but a human rights issue, that has been recognised by the UN, GREVIO and CEDAW and that is why we need to make sure we are not just passing any bill but the RIGHT bill.
Sexual violence does not discriminate, it does not care for your sex, your age, your sexual preference, your ethnicity or your religion. Counselling should not be seen as a weakness, but a lifeline. My counselling saved my life. Please let it save the lives of others.
As the representative body for counsellors and psychotherapists across Ireland, the IACP also sees the wider impact. Practitioners regularly encounter concerns from clients about whether what they share in therapy could one day become part of legal proceedings.
This uncertainty undermines the trust that effective therapy depends upon. Therapy must remain an absolute, confidential sanctuary and be entirely protected, client-centred, and safe for all those seeking support.
That is why the reforms currently before the Oireachtas are so vital. The bill has evolved significantly since it was first introduced. The strengthened provisions now establish a presumption against disclosure of counselling records and require rigorous judicial scrutiny before any such material can be released.
Importantly, disclosure would only occur where a court determines there is a real risk to a fair trial if access is refused.
These changes recognise an important principle: counselling records are different. They deserve a heightened level of protection because of the sensitive nature of the information they contain and the essential role they play in supporting recovery from trauma.
The legislation does not remove the right to a fair trial and nor should it. Fair trial rights are fundamental to our judicial system. But survivors also have rights, including the right to dignity, privacy and access to safe and confidential support without fear that their most personal disclosures will become courtroom evidence.
The challenge for legislators in this country has always been to balance these competing rights. The reforms currently before the Dáil represent an important and carefully considered attempt to achieve that balance.
As the bill moves into the Seanad for final scrutiny before it is signed into law, it is vital that the serious concerns of survivors, counsellors and psychotherapists are heard.
Survivors should be able to access therapeutic services without questioning whether their path to recovery could later become part of a legal strategy.
A justice system worthy of public confidence must do more than prosecute wrongdoing. It must ensure that those seeking justice are never deterred from coming forward by fear or unnecessary barriers.
A system that discourages survivors from seeking help fails not only those individuals but the very principles of justice it is meant to uphold.
Healing and justice should never be mutually exclusive, survivors deserve both.
Paula Doyle is a survivor and mental health advocate and Lisa Molloy is Chief Executive Officer of the Irish Association for Counselling and Psychotherapy.
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