Past guidelines have tended to err on the side of caution over whether to offer psychological therapy to people who are due to give evidence in Court as witnesses to a crime. Therapists are often warned that inviting a client to go through trauma memories in detail may be portrayed as ‘coaching the witness’, potentially discrediting their testimony or ‘contaminating the evidence’. There has also been a concern that therapists may inadvertently ‘implant’, strengthen or elaborate false memories by rehearsing them or through asking suggestive questions.
Advice has generally therefore been to defer therapy until after a court case, or at least to use only non trauma-focused techniques and avoid detailed discussion of the trauma memories. The limitation of this approach, however, is that vulnerable witnesses may be denied access to effective treatment, leaving them to endure their PTSD symptoms for longer. PTSD symptoms may also make giving their evidence even more difficult, especially when the perpetrator is present in Court.
More recent guidance published by the Crown Prosecution Service (CPS) has addressed these concerns by emphasising that the needs of the ‘victim’ (in their language) should be the priority; in other words, if the client has PTSD and wants therapy, it should not be delayed until after the trial. When this issue arises we therefore discuss the up-to-date CPS guidance with our clients, weighing up the pros and cons along with different treatment options. We support them in making an informed choice about how to proceed, alongside problem-solving any concerns they may have. We find that some people will prefer to wait until after the case has completed, but many want to proceed with trauma-focused treatment after weighing up the options.
One concern for clients can be the potential for disclosure of highly sensitive clinical records, including session notes and materials, to the police, CPS or even the perpetrator’s legal team. It's really important to make our clients aware that any therapy materials can be requested by the court (if they relate to a ‘reasonable line of enquiry’) and that therapists can also be required to give a witness statement about what a client has disclosed to them. We also take special care to make sure that all our records are clear, detailed and up-to-date, and that our clients know and agree to what we record.
Concerns about coaching or influencing witnesses are usually based on the idea that therapists may inadvertently implant false memories or suggest interpretations of events to clients, for example, by asking leading questions. Agreeing to keep audio or video recordings of sessions can therefore be helpful, to demonstrate if needed that the client’s account of the trauma has not been coached or altered through the therapy sessions.
When planning treatment, it is worth considering timing in relation to to the court case. Some cases take a long time to come to court, and there is ample time to complete treatment beforehand. If so, we often offer booster sessions around the time of the trial as well, if the client so wishes, to support them through it. Alternatively we add a section on managing the trial, and accessing additional support if needed, in their relapse plan.
If there is trial date approaching in the near future, this will understandably be preoccupying for many clients, and we need to plan around it. For example, the client may prefer to defer treatment until afterwards, or have a few non-trauma-focused sessions first and complete treatment afterwards.
It can be hard to start the process of placing the trauma memory in the past with the court date looming, especially if the client will be facing their perpetrator in court and detailing their traumatic experiences. We often help them prepare for this by working on strategies such as ‘then versus now’ stimulus discrimination, to cope with probable triggers in the run-up to the court date.
Another consideration is whether, with our client’s consent, to liaise with their legal team, and/or the CPS so they are aware of our involvement. We can also check our clients are being supported as vulnerable witnesses by court Witness Service, for example, by advocating for the options for them to give evidence via video link or from behind a screen.
Key practice points:
Past guidance on pre-trial psychological therapy has often been conservative because of fears of influencing the witness or undermining the evidence.
More recent guidance prioritises the needs of the victim, so treatment should not be delayed if it is needed and desired.
Notes can be requested by the courts so should be kept in good order, with clients informed of the limits to their confidentiality.
Timing of treatment needs to be considered to fit around court dates.
It can be appropriate to liaise with your client’s legal team, the Court and the CPS, to ensure they receive adjustments in court to support them as a vulnerable witness.
