CODE OF PRACTICE TO FACILITATE THE PROVISION OF THERAPEUTIC SUPPORT TO CHILD WITNESSES IN COURT PROCEEDINGS
RECORD KEEPING
74 If the therapeutic support provider is asked to give evidence concerning the circumstances in which the disclosures were made, the first source of support for the reliability of recall would be the notes maintained by the therapeutic support provider of the therapeutic support sessions. If the therapeutic support provider's notes contain only statements of the child, this may lead to a line of questioning aimed at identifying whether any inappropriate questioning strategies or suggestions from the therapist influenced the child's responses. Comprehensive notes, which record questions asked, as well as responses given, together with details of any specific therapeutic interventions would best prevent this line of inquiry. The absence of such notes, or their quality, might be a matter of comment to the jury/court as to the reliability of the evidence being given.
75 Although record keeping is a standard professional practice, the detail contained in records of therapeutic support sessions is quite varied. Therapeutic support providers should keep a detailed record of any disclosures, the discussions that led up to the disclosure and should include the questions asked of a child, as well as an account of what the child has said. Records should also be made of the child's non-verbal behaviour. In addition, any art or written work produced by the child should be named and dated as this may also be cited as evidence if substantive to fresh disclosures. The recording should be made immediately after the session is finished. Some research (e.g. Warren and Woodall, 1999) has shown that even the most experienced interviewers and practitioners tend to misremember the questions when questioned immediately after the interview. Thus, if questions are asked, a note should be made at the time they are asked, as well as the response. In other words, therapeutic support providers should not rely on their memory.
Example: Good practice in record keeping
An accurate record would include the date, time and duration of the therapeutic support session; the child's remarks and the questions that prompted these (in the exact words used); non-verbal behaviour (the child's actions, e.g. "He grabbed me here (pointing to body part)"; and any art or written work produced by the child during the session (named and dated).
76 If a therapeutic support provider is called as a witness in such a situation, their notes can be recovered. In criminal and civil court proceedings, if an issue of confidentiality arises, or is claimed, the court can be asked to rule on this. Normally, if a therapeutic support provider were to report disclosures, the Crown would seek access to notes of the therapeutic support session. The Scottish system of criminal procedure proceeds on the basis that the Crown has a duty at any time to disclose to the defence information in their possession, which would tend to exculpate (exonerate) the accused. If such notes were therefore in the hands of the Crown, there would be an obligation on the Crown to disclose them to the defence. The duty of the Crown is not simply to put forward witnesses who support the Crown case but to include in the list other witnesses whose testimony may not be in line with the Crown case but which may have a bearing on the innocence of the accused. This can help the court to form a balanced view of the evidence relating to the incident in question.
77 If the notes, however, are not in the hands of the Crown, the defence are entitled to apply to the court for an order for recovery of them. The Crown will respond to specific requests from the defence if satisfied that the production of the particular documents or other items would be likely to be of assistance to the proper preparation or presentation of the accused's defence. The accused's legal representative will need to show how the documents relate to the charge or charges and the proposed defence to it or them. The Law Society of Scotland's Code of Conduct for Criminal Work is that a solicitor should not give copies of precognitions/statements or documents to an accused, unless there are exceptional circumstances justifying a departure from this general practice.
78 The Crown will respond sympathetically if a request arises as a result of persons being unable to remember the events in question or refusing to
co-operate or whom the defence has been unable to locate. The duty of disclosure relates not only to documents, but also to information, which need not be in written form.
79 Paragraphs 74 - 78 above also apply substantially to the children's hearing court proceedings. On most occasions matters relating to disclosure of information to the defence are resolved by agreement. The reporter will seek to make all relevant material available to the defence, having consulted with the therapeutic support provider. Any party to the proceedings including the reporter, defence agent or safeguarder, may request records of the therapeutic support sessions. If the therapeutic support provider has concerns about making relevant material available, they may discuss the matter with the reporter. If the therapeutic support provider refuses to make the relevant material available, any party is entitled to cite the therapeutic support provider as a witness in the case. Their notes can also be recovered, subject to the same safeguards identified in paragraph 77. The sheriff in the case would rule on issues of confidentiality.
80 In criminal, civil and children's hearing court proceedings, if there is a disagreement as to the relevance of the therapeutic support session notes to the court proceedings, an independent commissioner can be appointed to go through the records and decide what information, if any, is relevant to the court proceedings. A commissioner is an independent advocate or solicitor who will provide a report to the court about what is contained in the records. It is not the role of the commissioner to provide advice to the parties about confidentiality. The case study below illustrates this procedure.
Case study: Recovery of records from therapeutic support sessions
Jane was subject to children's hearing court proceedings. The content of records of sessions with a psychiatric nurse became an issue before the proof commenced. The defence argued in favour of total disclosure; the reporter argued for more restricted use. The sheriff appointed an independent commissioner to read through the records and identify what was relevant to the case. In the event the restricted disclosure applied and confidentiality was partly preserved. (The commissioner of course was empowered by the court to read everything so to that extent confidentiality was breached).