Jill Swindells qualconsultancy

1. “Pre-trial therapy” (not to be confused with pre-therapy) Jill Swindells qualconsultancy.com

2. Before we begin … • Housekeeping • Toilets, fire alarms, mobile phones … • Timing • Workshop = 2.15 to 4ish with a break midway Later … • Plenary @ 4.15 • Group discussion = 5.30-6.30 to scope the legal and ethical issues of counselling within the CJS • Dinner @ 7.00 • Confidentiality/contracting? • Discretion and anonymous/composite case material • Permission to record?

3. A bit about me … • Background in market and social (PC) qualitative research, specialising in the vulnerable and hard to reach e.g. • ‘Court experiences of vulnerable people’ (MOJ/TNS-BMRB) • Young Victims (OCJR/TNS-BMRB) • Offenders evaluation of 'Alcohol Treatment Requirement' service provider (ADSIS/Step Beyond)

4. A bit about me … • Background in market and social (PC) qualitative research, specialising in the vulnerable and hard to reach e.g. • ‘Court experiences of vulnerable people’ (MOJ/TNS-BMRB) • Young Victims (OCJR/TNS-BMRB) • Offenders evaluation of 'Alcohol Treatment Requirement' service provider (ADSIS/Step Beyond) • 13 years Victim Support volunteering with victims of all serious crime and children without parental permission when necessary

5. A bit about me … • Background in market and social (PC) qualitative research, specialising in the vulnerable and hard to reach e.g. • ‘Court experiences of vulnerable people’ (MOJ/TNS-BMRB) • Young Victims (OCJR/TNS-BMRB) • Offenders evaluation of 'Alcohol Treatment Requirement' service provider (ADSIS/Step Beyond) • 13 years Victim Support volunteering with victims of all serious crime and children without parental permission when necessary • Person-centred counsellor volunteering at: • HMP Onley • Safeline (R/SA agency) • CAF counselling in schools • Myton Hospices – bereaved parents group + children’s workshops

6. And my interest in pre-trial therapy (ptt)… • Over 13 years, increasingly concerned about an apparent lack of awareness and understanding around counselling victims/witnesses, particularly pre-trial … also if clients decide to report during or following counselling. • VS Research Counselling training/experience • Dissertation on ‘Counselling Victims and Witnesses of Crime ’ … (included Pre-Trial Therapy – awareness and understanding of CPS guidance) • Might identifying ‘victims and witnesses of crime’ as a discrete client group help highlight clients’ CJ needs and balance opposing ethical/legal issues?

7. A bit about you … • Name, working +/ volunteer roles … • Counselling settings and approaches? • Any special counselling interests/expertise? • Something about you it might surprise us to know?!

8. Pre-trial therapy workshop … • Why chose this workshop? • Anything in particular you’re keen to find out about? • What are your hopes/expectations? • Any concerns?

9. Responding to a disclosure … • Current counselling practice in your prison … +/ awareness of what happens in other prisons? • Offender regarding another offence? • A crime not convicted for, perhaps unreported? • An incident in prison? • Other issues? • Offender as a victim • Incident in prison? • Past abuse? • Other aspects … • reporting, pre-/ during/post- court support, etc.?

10. pre-trial therapy … • Current awareness and understanding? • Sources of information +/ training? • Any direct experience? • Perceptions of PTT… including relevance to prison settings

11. dissertation findings … • Therapists had little/no concept of ‘victims/witnesses of crime’ (VWC) as a group with potentially specialist/overarching needs, nor the implications for counselling, particularly pre-trial • Clients’ needs relating to criminal justice along with potentially conflicting legal and ethical issues were not fully appreciated, pre-, during or post-reporting or trial

12. dissertation findings … • Therapists had little/no concept of ‘victims/witnesses of crime’ (VWC) as a group with potentially specialist/overarching needs, nor the implications for counselling, particularly pre-trial • Clients’ needs relating to criminal justice along with potentially conflicting legal and ethical issues were not fully appreciated, pre-, during or post-reporting or trial • A lack of appropriate, relevant and up-to-date information, advice, guidance and training aimed at or originating from the counselling/psychotherapy world was evident • Limited awareness and use of CPS guidance (HO/CPS/DH, 2001), along with inadequate supervision, policies and procedures, risks clients being denied fully informed consent as well as compromising trials due to counselling being inappropriate or ill-conceived

13. Some general issues … • CJS often criticised for sidelining victims/witnesses despite: • their crucial role in the process • successful prosecutions being dependent on their cooperation • evidence-giving often being demeaning or intimidating • Media coverage, particularly regarding CSA, suggests ‘victims and witnesses of crime’ continue to be marginalised or re-victimised

14. Some general issues … • CJS often criticised for sidelining victims/witnesses despite: • their crucial role in the process • successful prosecutions being dependent on their cooperation • evidence-giving often being demeaning or intimidating • Media coverage, particularly regarding CSA, suggests ‘victims and witnesses of crime’ continue to be marginalised or re-victimised • ‘Speaking up for Justice’(HO,1998, cited in foreword of HO/CPS/DH,2001) stated victims/witnesses “should not be denied the emotional support and counselling they may need both before and after the trial”.

15. Some general issues … • However, therapy pre-trial/during is often avoided or discouraged or fear of tainting evidence, witness coaching or undermining their credibility (MOJ/CPS/DE/DH/WAG, 2011). • Long investigations and court delays threaten victims/witnesses welfare and the quality of eventual testimony, limiting ability to give ‘best evidence’ as memories fade, are suppressed or tainted (Ellison,2001)

16. Some general issues … • However, therapy pre-trial/during is often avoided or discouraged or fear of tainting evidence, witness coaching or undermining their credibility (MOJ/CPS/DE/DH/WAG, 2011). • Long investigations and court delays threaten victims/witnesses welfare and the quality of eventual testimony, limiting ability to give ‘best evidence’ as memories fade, are suppressed or tainted (Ellison,2001) • Achieving Best Evidence Guidance’(DOJ, 2010) recognised delays can worsen the prognosis and recommended support, including pre-trial, should begin as soon as possible for those deemed ‘vulnerable and intimidated’.

17. Cps ptt practice guidance … • Crown Prosecution Service practice guidance (HO/CPS/DH, 2001) was issued following similar guidance for children and the introduction of ‘special measures’ (CPS, 1999) … ‘Provision of therapy for vulnerable and intimidated witnesses prior to a criminal trial’ • … for victims/witnesses perceived as in need of additional support, more specifically therapeutic, before +/ during court

18. Cps ptt practice guidance … • Crown Prosecution Service practice guidance (HO/CPS/DH, 2001) was issued following similar guidance for children and the introduction of ‘special measures’ (CPS, 1999) … ‘Provision of therapy for vulnerable and intimidated witnesses prior to a criminal trial’ • … for victims/witnesses perceived as in need of additional support, more specifically therapeutic, before +/ during court • It is critical to therapists meeting the possible needs of victims/witnesses, working ethically and in the clients best interests … balancing recovery with getting justice (Swindells,2012)

19. Cps ptt practice guidance …… • Sought to: • Provide a framework for good practice • Improve understanding, explain roles, timing, responsibilities, eligibility and appropriate practice • Highlight the key issues critical to therapists working ethically and legally • Inform counselling policies, procedures and practice when working pre-trial

20. Cps ptt practice guidance …… • Sought to: • Provide a framework for good practice • Improve understanding, explain roles, timing, responsibilities, eligibility and appropriate practice • Highlight the key issues critical to therapists working ethically and legally • Inform counselling policies, procedures and practice when working pre-trial • But it has never been widely publicised, so awareness and use of the guidance is limited … (Swindells,2012)

21. Other research suggests… • Despite the introduction of pre-trial procedures (CPS, 2001), very few received therapy pre-trial and noted no procedures in place to provide during/post-trial counselling • Many eligible adult victims/witnesses are not identified as vulnerable/intimidated, so not referred to counselling and problems persist due to: • Reluctance to disclose vulnerability/intimidation • Fear of the consequences • Poor information/advice/training of those responsible for identification = primarily the police (Lee and Charles,2008; McLeod et al,2010)

22. From a counselling perspective … “Therapeutic practice appears to be lagging behind the recent developments in the law, designed to increase the availability of therapy prior to the court appearance of witnesses, especially victims and those who are vulnerable or intimidated.” This is “ not just a problem for individual therapists but for their professional bodies as representatives of therapy collectively...(and) subsequently leads to complications in litigation (which) diminishes the public reputation of therapists as a whole.” (Bond and Sandhu, 2005/11).

23. From a counselling perspective … • Sims (2010) suggested therapists … • are often unaware of being involved inforensic practice • have limited awareness of legal implications • inadvertently risk breaking the law through ignorance • Spence (1983) explained that CJ requires … • ‘historical truth’ supported by corroborative evidence, • whilst counselling entails ‘narrative truth’ making sense of what happened, even if it is unclear, ambiguous or not the ‘absolute truth’.

24. From a counselling perspective … • Whilst some therapists seem unaware of PTT guidelines … • Others avoid such work for fear of: • their notes being subject to a court-order • being called to give evidence themselves • potentially undoing progress achieved prior to a trial • compromising the therapist, client and therapeutic relationship (Bond and Sandhu, 2005/11)

25. From a counselling perspective … • How do you feel about counselling pre-trial? • And PTT? • Any examples from practice?

26. From a counselling perspective … • Therapists may be intimidated by and cautious of PTT as it exposes them to a legal minefield and opposing ethical priorities … (Bond and Sandhu, 2011) • Justice? • Beneficence and non-maleficence? • Autonomy? • Fidelity? • Self respect?

27. From a counselling perspective … • Therapists may be intimidated by and cautious of PTT as it exposes them to a legal minefield and opposing ethical priorities … (Bond and Sandhu, 2011) • Justice? • Beneficence and non-maleficence? • Autonomy? • Fidelity? • Self respect? • What ethical issues come to mind?

28. From a counselling perspective … • Some examples… • Justice? • Clients may feel re-victimised by CJS = do more harm than good • Therapists may inadvertently compromise client/trial by invalidating evidence • Beneficence and non-maleficence in tension • When supporting a client to report/have PTT • Therapists/their notes may be requested by the courts • Autonomy? • Following the guidance = client/therapist unable to make free/fully informed choices • Important for contracting to highlight all the issues to maximise autonomy • Fidelity? • PTT compliant counselling policies and procedures • Access to counselling/PTT for offenders in custody/the community? • Self respect? • Appropriate training and supervision

29. From a counselling perspective … • So PTT requires: • Detailed consideration of ethical, professional issues and legal requirements • Compatibility with the law and public interest to avoid conflict • A different mindset and way of thinking • Systematic and rigorous approach until the trial is over (Bond and Sandhu, 2011; Mitchels and Bond ,2010)

30. CPS PTT practice guidance .... • What do you know about the do’s and don’ts? • Who’s eligible? • Who decides? • When should you start? • What it recommends to do/avoid? • Changes to normal practice? • Contracting/confidentiality • Notes and records • Court preparation • Etc.

31. Who is eligible? • Vulnerable and intimidated witnesses … • Adults aged over 18 years: • Physical/mental health difficulties • Learning disabled/capacity impaired • Affected by sexual/domestic abuse or weapon-related crime • The elderly/frail • And all children/young people under 18 years • N.B. Only these victims/witnesses are entitled to pre-/during trial therapy, not all victims/witnesses

32. Vulnerable and intimidated offenders? • 36% of all prisoners have physical/mental health issues • 20-30% of all offenders have learning disabilities/ difficulties which affect coping with CJS • 23% young offenders have learning difficulties and 36% borderline learning difficulties

33. Vulnerable and intimidated offenders? • 36% of all prisoners have physical/mental health issues • 20-30% of all offenders have learning disabilities/ difficulties which affect coping with CJS • 23% young offenders have learning difficulties and 36% borderline learning difficulties • 49% women and 23% male prisons suffering from anxiety/depression • 25% women and 16% men in prison reported psychotic symptoms • 23,183 incidents of self harm in custody in 2013

34. Vulnerable and intimidated offenders? • 36% of all prisoners have physical/mental health issues • 20-30% of all offenders have learning disabilities/ difficulties which affect coping with CJS • 23% young offenders have learning difficulties and 36% borderline learning difficulties • 49% women and 23% male prisons suffering from anxiety/depression • 25% women and 16% men in prison reported psychotic symptoms • 23,183 incidents of self harm in custody in 2013 • 46% women prisoners attempted suicide at some point in their lives • 12% of the prison population is over 60, some older prisoners have a physical health status over 10 years older (Bromley Briefings Summer 2014)

35. Who decides and when to start … • The vulnerable/intimidated, their carers/therapists are ultimately responsible for decision making • And may also flag up eligibility if appropriate and not already identified • The police +/ CPS need to be informed & disclosure made to the defence depending on the stage reached • Therapy should not start until after the police interview • If new disclosures during therapy, put on hold till follow-up interview(s) completed • Communication with police/CPS may need to be on-going

36. CPS PTT guidance recommends ... • Avoiding: • Recounting, re-enacting or rehearsing the incident(s) • Attempting to distinguish fantasy from fact • Implanting/false memories • Interpretive/psychodynamic psychotherapy • Hypnotherapy/psychodrama • Regression techniques • Unstructured group work

37. Other sources recommend... • Avoiding: • Guided imagery, dream interpretation • Imaginal/exposure therapy • Crisis intervention/desensitisation • EMDR/Rewind technique/NLP • Bibliotherapy (Fieldman-Summmers, 1996; Miller, 1998; Counselling Directory)

38. CPS PTT guidance recommends .... • Therapy focussing on: • The impact of the crime • Mental health issues • Emotional/behavioural disturbance • Dealing with/avoiding abusive situations • Building self-esteem and confidence • Stress reduction • Reassurance and support

39. CPS PTT guidance recommends .... • Therapy focussing on: • The impact of the crime • Mental health issues • Emotional/behavioural disturbance • Dealing with/avoiding abusive situations • Building self-esteem and confidence • Stress reduction • Reassurance and support • And states a preference for CBT … • Generalised evidence based rationale? • Appropriate evidence lacking? (Joseph et al 1997, Itzin et al, 2010))

40. A person centred approach? • The Delphi Expert Consultation reported CBT alone is … “insufficient to meet victim/survivors needs … no single therapeutic approach…works best for every victim/survivor” and recommended “approaches … should be needs-led and victim/survivor centred … associated with characteristics such as empowerment, giving control and choice to victims/survivors” (Itzin et al,2010)

41. A person centred approach? • The Delphi Expert Consultation reported CBT alone is … “insufficient to meet victim/survivors needs … no single therapeutic approach…works best for every victim/survivor” and recommended “approaches … should be needs-led and victim/survivor centred … associated with characteristics such as empowerment, giving control and choice to victims/survivors” (Itzin et al,2010) • Therapists working with trauma victims should be … “as involved and engaged as is possible without violating therapist-client boundaries … real, warm, concerned, empathic, responsive …” (McCann and Pearlman, cited by Janoff-Bullman, 1992)

42. A person centred approach? • Providing PTT information, contracting appropriately, sharing responsibilities for boundaries and stopping clients talking about the incident(s)/evidence is NOT directive if done sensitively with … • Empathic understanding • Respect for their experience, autonomy and frame of reference

43. A person centred approach? • Providing PTT information, contracting appropriately, sharing responsibilities for boundaries and stopping clients talking about the incident(s) is NOT directive if done sensitively with … • Empathic understanding • Respect for their experience, autonomy and frame of reference • The “therapist’s job is to follow where the client leads, putting aside theoretical understanding and any other expert knowledge” (Wilkins,2010) • Clearly PTT requires some adaptations to meet CPS requirements and balance ethical considerations

44. The danger of ‘discussion’... • ‘Discussions’ of any kind prior to trial perceived to increase the potential for: • Gaps/inconsistent accounts of events in question • Deliberate/inadvertent fabrication (sense-making) • Risks becoming more convinced/convincing of evidence, but no less mistaken and, hence, perceived as less reliable as a witness • Therapy just ONE kind of ‘discussion’, others include: family, friends … prison officers, other prisoners … • May lead to allegations of coaching/ contamination/unreliability …

45. Other changes to normal practice … • In addition to not talking about the evidence … • Incident(s) / people involved • What others said/did (’heresay’), etc. • Contracting needs to be PTT specific, thorough (ideally written) and on-going in case the situation changes • Confidentiality cannot be guaranteed • Notes may be seized/counsellor called as a witness • Notes should be brief, factual and, ideally, shared, reviewed, signed as accurate + dated … • Contain no personal disclosure/opinion • Carefully record and disclose any additional allegations • Court preparation and support should be kept separate

46. What if … • Circumstances/situations/decisions change … • ‘Counselling’ client first discloses childhood sexual abuse several weeks into counselling? • Depressed/anxious ‘counselling’ client discloses alleged physical/emotional abuse/neglect of their neighbours child by parents? • Non-reporting and not vulnerable/intimidated ‘counselling’ client decides to report during/post-therapy? • PTT client reveals new information about the crime (s)/another unreported crime? • PTT client offends/re-offends in the meantime and due in court as offender first? • After failed reporting by autistic client and starting ‘counselling’ believing not going to trial, the police/CPS decide to proceed as other victims/witnesses/new evidence/crime(s) emerge?

47. So … • Circumstances/situations/decisions can change … • Hence, prudence recommended when counselling all potential victims/witnesses at any stage in their quest for recovery and/or justice (Godsi,1999; Swindells, 2012)

48. an ex-offenders personal experience of PTT… Starting initially as a CSA victim reporting for the 3rd time ... Partway through PTT, reoffended, so facing trial and the possibility of prison where she’d experienced further abuse … After 33 sessions and currently taking a break between trials. Played with the clients permission.

49. Good practice guidance ... • Adoption of common terminology – PTT, CPS guidance • So everyone is talking the same language • Be prepared … • Proactive > reactive +multi-agency working (Donlan + Jenkins 2010) • Familiarity with CPS guidance + updates • Relevant training and supervision? • Policies on disclosure, notes, records, etc. • Fully informed consent + contracting on-going • Not guaranteeing confidentiality • Avoiding certain approaches/coaching/evidence • Appropriate focus • Pre-court preparation and support separate

50. Good practice guidance ... • Don’t forget … resuming normal therapeutic practice post-trial as … “...the same concern about external evidence...necessary in the courtroom is not required in recovery and healing” (Whitfield,1995).