The prospect of the disclosure of counselling notes is a very traumatic one for complainants in a criminal trial, and I fully sympathise with victims and survivors who have deeply felt views in this matter. However, the Attorney General has advised that a blanket ban on the disclosure of counselling records is not compatible with the Constitution and therefore disclosure hearings are necessary.
The original intention of section 19A of the Criminal Evidence Act 1992, the insertion of which was supported by the Deputy's party, was that the counselling records would only be disclosed if there was a real risk of an unfair trial. However, the legislation has not operated as intended and counselling records are being routinely disclosed. By requiring that a disclosure hearing take place in which the judge assesses the relevance of any counselling records through a judicial process, the original intention of the legislation will apply and the difficult balance between the victim’s right to personal privacy and the accused person’s right to a fair trial can be struck.
On 4 February 2026, I secured Government approval to make further amendments to section 19A, in order to restrict the disclosure of counselling notes to the maximum extent permissible under the Constitution. These include a presumption of non-disclosure, which creates a form of statutory privilege, so that the default position is that counselling notes are not to be disclosed, unless there is a risk of an unfair trial.
The amendments send a strong signal to any future complainants that their records are protected from intrusion and provide reassurance that unwarranted requests will be rejected by the court. Additionally, it is intended to extend the protections of section 19A to other categories of records which have a high expectation of privacy, including medical records, psychiatric records, therapeutic records, child protection records and social service records. These amendments will provide increased protections and greater reassurance to complainants in criminal trials concerning sexual offences in relation to the use of personal records in those trials.
My Department is cognisant of the practice and approaches taken in other jurisdictions facing similar challenges to Ireland with regard to the disclosure of counselling records, including Canada.
