By Pauline Groves
NSW Attorney General Jeff Shaw has announced plans to introduce a bill to protect some confidential professional relationships, including those of counsellors, social workers and journalists. At present, professional conduct codes for counsellors and journalists emphasise confidentiality as essential to client welfare or to the public interest, but there is no corresponding legal protection. Judges can force journalists or counsellors to breach their ethics.
A disturbing theme emerging from the First National Conference on Sexual Assault and the Law, held in Melbourne at the end of November 1995, was the growing trend by defence lawyers to subpoena counselling notes taken in confidential interviews with victims of sexual violence.
Conference keynote speaker Elizabeth Sheehy, a Canadian feminist academic, highlighted a defence tactic now routinely used in Canada. "We have been completely overtaken by an all-out assault by the defence bar, the police, the judiciary" in an aggressive defence strategy to subpoena and use against women all kinds of past records, including crisis counselling notes, medical, school, birth control, abortion and family court records.
Women's lobby groups want explicit shield laws to safeguard the confidentiality of counselling interviews. Lil Vrklevski, from the Royal Prince Alfred Sexual Assault Unit in Sydney, is a registered psychologist with a law degree. She explained the devastating effects of breaching confidentiality . "For clients it really does feel like a re-violation. They've opened up and trusted a professional, and suddenly that trust is broken."
A former client and rape victim told Vrklevski: "I just can't bear him going through my notes. It makes my skin crawl. He invaded my home. He invaded my body. Now he wants to invade my thoughts. There's nothing left for him to invade in my life."
Vrklevski asserts that counselling notes are unrelated to the facts of a case. "The notes are not relevant to the identity of the perpetrator or whether consent was the issue or whether a crime happened. We focus on clients' feelings", she said. "We try to build a relationship based on trust and confidentiality. If we can't do that, then this has serious implications. That's what we want protected."
Ruth Pilkinton, a solicitor with the Women's Legal Resources Centre in Sydney, is a member of the NSW Women's Working Party concerning the confidentiality of counselling notes. She believes that defence lawyers have no specific business with counselling files but merely want pretrial access to fish for anything that might be used to damage a woman's credibility. "They're trying to intimidate the complainant to deter her from pursuing the case."
Di Lucas, administrator of the Canberra Rape Crisis Centre, made the trip to Melbourne in November to convene discussions on the law and sexual assault. "We were trying to get a consistent national stand on not handing over notes", she said.
Stories of the Canadian experience made a marked impression. "We've always had a confidentiality policy", Lucas said. "Hearing that in Melbourne made us think we've got to work this out a bit more and maybe articulate the stand we are taking. Events overtook us. We arrived back in Canberra and there was a subpoena waiting for us."
The subpoena ordered that notes taken during counselling sessions with a rape victim be presented at Queanbeyan Local Court. The Rape Crisis Centre prides itself on acting as an advocate for female victims of violence. Collective members objected to being ordered to appear as witnesses for the defence.
Lucas went to court with the files but defiantly ignored the magistrate's order to hand them to the defence counsel and was charged with contempt. She spent four hours in the Queanbeyan watch-house while barrister Amanda Tonkin negotiated her release. "We agreed to leave the notes in a locked briefcase to which only we have the combination", said Lucas.
The defence tried twice more but failed to gain access. "The notes are still in the briefcase at the court pending trial, at which point we anticipate having to go through the whole thing again", Lucas said.
Chris Murphy, high profile criminal lawyer, cites two reasons for defence lawyers to look at a counsellor's notes: to study the counsellor's role and to examine the consistency of the complaint.
"I've seen girls make statements to the police about events and they change their minds in the witness box", he said. "If they've lied to the police and they're telling the truth in court — it's a question of their general credibility. The aim is to get to the truth."
Gerard Webster, director of the Sexual Assault Counselling Service in Darlinghurst, considers the current criminal justice system serves defendants by placing a heavy burden of proof on victims of sexual assault. "It's an adversarial system", he said. "The onus is on the victim to establish that guilt of the perpetrator. The pressure is on the victim to find evidence to the highest standard in the land."
Solicitor Ruth Pilkinton agrees that in sexual assault cases, the legal system is weighted in favour of defendants by placing "a de facto onus upon a woman to establish that she's upstanding and that she can be relied upon".
Pilkinton added that past law reform commission inquiries which looked at confidentiality for therapists produced no changes to the law. "The pro-defendants' rights lobby always jump up and down and say: 'This is a grave, grave reduction in the rights of the accused'".
If the law and court proceedings reproduce societal values, it is clear that some confidential relationships are more valued than others. Priests allow people to unburden themselves in the confessional. Theoretically, under the NSW Evidence Act, a priest could be called to give evidence in criminal proceedings. However, it is unlikely in practice because of statutory privilege and under canon and civil law.
Similarly, lawyers enjoy a high degree of protection, based on the notion of a fair trial. Certain aspects of the lawyer and client relationship are protected under the NSW Evidence Act and in common law, although a court could override legal professional privilege.
The incarceration of Di Lucas and the ensuing public attention demanded an official government response. Faye Lo Po, NSW minister for women, issued a press release expressing outrage that such a drastic step was needed to preserve confidential counselling.
The present legal system affirms that confidential relationships between priests and penitents or lawyers and clients merit legal protection. Counselling and journalism, it seems, do not.
The NSW Attorney General's Department has recently issued a public discussion paper and wants community submissions. Copies of the draft bill and discussion paper are available from the Legislation and Policy Division of the department on (02) 9228 7435. Submissions should reach the Director General, Attorney General's Department of NSW, GPO Box 6, Sydney 2001, no later that August 15.