Protecting Therapy: Understanding the 2026 Code of Practice for Counselling Records and Victim Information Requests

As we move toward the implementation of the Police, Crime, Sentencing and Courts Act 2022, a new statutory Code of Practice is set to take effect in January 2026. This Code introduces significant changes to how the police and other authorised persons request Third Party Material (TPM), with the most stringent protections reserved for counselling records. For practitioners and victims alike, understanding these "Victim Information Requests" (VIR) is essential for maintaining the balance between a fair trial and the right to therapeutic privacy.

Definition and Scope of Counselling

A counselling service is defined as any service, whether remunerated or voluntary, that offers psychological, therapeutic, or emotional support aimed at improving a victim's emotional, psychological, and mental health. This includes pre-trial therapy, which is subject to the same enhanced standards.

Counsellors may be:

• Statutorily registered with bodies like the General Medical Council or the Health and Care Professions Council.

• On an accredited voluntary register.

• Unregistered, such as Independent Domestic Violence Advisers (IDVAs), Independent Sexual Violence Advisers (ISVAs), or ministers of religion.

The "Substantial Probative Value" Test

Unlike general TPM requests, which only require information to be relevant to a "reasonable line of enquiry," counselling information requests must meet a higher threshold: the authorised person must believe the information is likely to have "substantial probative value".

Substantial probative value refers to information that has meaningful evidential significance and adds significant weight or substance to the point being investigated. Factors that may establish this include:

• The potential to substantially contribute to establishing or refuting critical facts of the investigation.

• Providing meaningful support to the investigative narrative.

• The likelihood that the information may significantly influence the outcome or direction of the case.

The sources explicitly state that certain factors are not sufficient on their own to establish substantial probative value, including the mere existence of the record, the fact that the victim is receiving therapy, or speculation that the records might relate to the victim's credibility or reputation.

Presumption and Rebuttal

Authorised persons must start with the presumption that requests for counselling information are not necessary and proportionate. To rebut this presumption, the authorised person must consider:

• Whether the information can be reasonably obtained through other, less intrusive means.

• The potential consequences for the victim's privacy and wellbeing.

• Whether failing to obtain the records could adversely affect the accused’s right to a fair trial.

Procedural Safeguards and Sign-off

Because of the sensitive and confidential nature of counselling records, which are often used as aids for therapy rather than for medical assessment, specific administrative hurdles must be cleared:

• Seniority for Approval: Requests for counselling records require a higher level of seniority for approval than standard TPM requests. Within the police, this may include a Chief Inspector; for service police, this must be an officer of or above the rank of Lieutenant Commander, Major, or Squadron Leader.

• CPS Engagement: It is strongly recommended that authorised persons seek early advice from the Crown Prosecution Service (CPS) to aid in assessing necessity, proportionality, and substantial probative value.

• Record Keeping: Authorised persons should keep a record of the considerations used to justify rebutting the presumption that a request is not necessary. This rationale must be confirmed during the sign-off process.

Moving Forward

These updates represent a vital shift toward protecting the therapeutic relationship. While third parties (like counsellors) are not legally obligated under the CPIA to release material, they are encouraged to cooperate with lawful and proportionate requests while determining their own lawful basis for data sharing under the Data Protection Act.

If you or your organization handle sensitive victim data, we urge you to review the full Victim Information Requests: Code of Practice to ensure you are prepared for January 2026. If concerns arise regarding how a request is handled, complaints can be directed to the relevant police force, the IOPC, or the Information Commissioner’s Office (ICO).