When a Client (Secretly) Records a Counselling Session: Legal, Ethical, and Practical Considerations

Every now and then, situations arise in counselling practice that shake even seasoned counsellors. One such situation I read about recently was a counsellor’s discovery that the client had secretly recorded a session without the counsellor’s consent. This counsellor is based in Victoria, and the matter raises important questions for counsellors across Australia. What is at stake here? What does the law say? How do professional codes of ethics guide us? And how should we respond in practice? I’ve aimed to keep this post fairly short, yes still comprehensive (excuse the bullet points!).

What Is at Stake?

As we all know, the therapeutic relationship relies on trust, openness, and mutual respect. A covert recording can definitely rupture that foundation and leave a counsellor feeling violated and unsafe. At stake are:

• Confidentiality and privacy: A recording may contain sensitive disclosures from both the counsellor AND the client that were never meant to exist outside the room.
• The therapeutic alliance: Trust can be significantly eroded when boundaries are crossed in this way.
• Ethical and professional practice: Counsellors must adhere to, and respond in line with professional codes of ethics.
• Personal safety and integrity: The misuse of recordings, such as sharing or editing, poses potential risks to counsellors.

Legal Considerations in Australia

Australia has complex and state-based laws around recording private conversations, and I absolutely am not pretending to know the ins and outs. Here’s what I was able to find (aided by my friend ChatGPT, but checked personally), and I’ll happily stand corrected if you know more than I do!

• Federal law (Telecommunications (Interception and Access) Act 1979): This law generally prohibits interception of communications without consent. It’s mainly focused on law enforcement and security agencies (and doesn’t cover counsellor-client conversations), but the ‘spirit’ of the law could also apply to clients and counsellors.
• State and Territory laws differ: whether it’s legal to recording a therapy session is determined by state laws. According to an article I found online, “these laws fall into two categories: one-party consent and two-party consent. In a one-party consent state, it is legal to record a conversation if at least one person involved is aware of the recording, and the majority of states follow this rule. A number of states operate under two-party consent laws, also called “all-party consent.” In these [states], every person in a conversation must give permission before it can be legally recorded. This means a client must get their therapist’s explicit consent.” For Australia, it seems to be this way:

• • One-party consent jurisdictions – VIC, QLD, NT: It is lawful for one party (e.g., the client) to record a conversation without informing the other.
  • All-party consent jurisdictions – NSW, ACT, SA, TAS, WA: All parties must consent to a recording.

This means that in Victoria (as in QLD), a client can legally record a session without a counsellor’s knowledge. However, something being legal does not mean it’s ethical, as well.

International comparison:

• UK: Personal recordings are lawful but cannot be shared or published without consent.
• USA: Rules vary by state; some require all-party consent, others one-party consent.

Ethical Issues

Whether lawful or not, covert recordings do raise some significant ethical concerns:

• Informed consent: Both parties must understand and agree if a recording is to take place.
• Respect and transparency: Secret recordings undermine mutual trust.
• Boundaries: Covert behaviour crosses professional boundaries and can be manipulative.
• Counsellor safety: Recordings could be misused in ways that harm the practitioner’s reputation or practice.

What Do ACA and PACFA Say?

Both major professional bodies in Australia have a few things to say about consent and ethics:

• ACA Code of Ethics (V16, 2024)
  • Section 6.1, under iii states: Counsellors must provide privacy for counselling sessions. The sessions should not be overheard, recorded, or observed by anyone other than the counsellor, without informed consent from the client. Normally any recording would be discussed as part of the contract. Care must be taken that sessions are not interrupted.
  • Section 14.0 under i: Counsellors are responsible for setting and monitoring boundaries throughout the counselling sessions and will make explicit to clients that counselling is a formal and contracted relationship and nothing else.
  • Section 9.0 under (a): Confidentiality is a means of providing the client with safety and privacy and thus protects client autonomy. For this reason, any limitation on the degree of confidentiality is likely to diminish the effectiveness of counselling.
• PACFA Code of Ethics (2017) and their “Good Practice Guidelines on Privacy, Intake and Consent in Private Practice” (2024)
  • PACFA has fewer explicit guidelines on recording of audio, but does clearly require informed consent in relation to therapy terms, confidentiality, etc. The Good Practice Guideline: Privacy, Intake & Consent in Private Practice (PACFA) states that “PACFA requires that practitioners obtain informed consent to provide therapy with a client”. Although it doesn’t cover recording of sessions specifically, that should be part of consent on both the client and counsellor’s side.
  • The Code of Ethics has sections on “Respect confidentiality”, which include informing clients of their rights, the limits of confidentiality, etc. As far as I’m concerned, that goes both ways, and could be included in your terms and conditions/consent forms!

I would dare to conclude that, based on the ethical guidelines of both ACA and PACFA, recording (either by counsellor OR client) is permissible only with explicit consent.

Practical Guidelines for Counsellors

1. Include recording policies in your consent forms. State clearly whether recording is allowed, and under what conditions.
2. Revisit this verbally in the first session, so clients fully understand.
3. Respond calmly yet firmly if a recording is discovered; show curiosity more than hostility when questioning the client why they chose to record the session.
4. Request deletion on the spot if you really don’t want to be recorded. If the client refuses, document the incident thoroughly.
5. Use supervision to process your own sense of violation and explore next steps.
6. Risk management: If trust is irreparably damaged, it is ethically appropriate to end the therapeutic relationship and refer the client on.

An interesting article was published in 2021: Overt and covert recordings of health care consultations in Australia: some legal considerations. The article mentions the following:

“If their consent is legally required but the clinician does not want to be recorded, they can simply ask the patient to discontinue the recording. Regardless of whether the act of recording legally requires their consent, a clinician’s refusal to be recorded, or the exposure of covert recording by a patient, may lead to breakdown of the therapeutic relationship, necessitating transfer of care to another clinician … While discontinuing a relationship may be appropriate in the context of misuse of an audio recording or its use with malicious intent, it would be a drastic response to a simple request by the patient to record, given the benefits of doing so.”

The article concludes that “while covert recording is not uniformly unlawful in Australia, transparency promotes trust and enhances the clinician–patient relationship.”

Supervision Perspective

If a supervisee brought this to supervision, I would first validate their sense of violation; I think their concern is real and legitimate (I’d be a bit shocked myself if I found out a client was secretly recording my sessions with them). I would then clarify the legal context (that in some Australian States, such a recording may be lawful) and help them explore options:

• Can the relationship be repaired through boundary-setting and discussion?
• How did the client respond to the counsellor asking questions about this?
• Is the rupture so severe that referral is the safest path forward?
• What needs to change in the counsellor’s practice (e.g., consent forms, upfront conversations) to reduce the likelihood of this happening again?

This incident also reveals something of the client’s relational style (deflection, blame, mistrust), which may mirror other interpersonal difficulties. A reflective exploration of this dynamic can be clinically valuable — if the counsellor feels safe and resourced to continue.

Final Thoughts

Being secretly recorded is confronting, unsettling, and can leave a counsellor feeling exposed. While the law may allow one-party recordings in some jurisdictions, most of our ethical standards do not, is my professional opinion. Consent, transparency, and mutual respect are cornerstones of practice. By embedding clear recording policies, addressing issues directly, and seeking supervision, counsellors can (learn to) navigate these situations with professionalism and integrity.

I am looking forward to your comments (and perhaps corrections of some of my findings!).

 

 

 

Marc de Bruin is an ACA Level 4 counsellor, clinical supervisor (for both PACFA and ACA), university tutor, and former barrister-solicitor with over 20 years’ experience in counselling, supervision, and professional development. He is the founder of Counselling Supervision and Simplifying Life.