Appendix B
Comparison between the previous and current legal situations
Previous legal situation
Current legal situation
United Nations
Article 19 – Governments should ensure
Article 19 – Governments should ensure
Convention on
that children are properly cared for and
that children are properly cared for and
the Rights of the  protect them from violence, abuse and
protect them from violence, abuse and
Child
neglect by their parents, or anyone else
neglect by their parents, or anyone else
(UNCROC)
who looks after them.
who looks after them.
NZ Bill of Rights  New Zealanders have the right not to be
New Zealanders have the right not to be
Act 1990
subjected to torture, or to cruel, degrading
subjected to torture, or to cruel, degrading 1982
or disproportionately severe treatment or
or disproportionately severe treatment or
punishment.
punishment.
Human Rights
The Human Rights Commission’s primary
The Human Rights Commission’s primary
Act 1993
functions include:
functions include:
Act
• advocate and promote respect for, and
• advocate and promote respect for, and
an understanding and appreciation of,
an understanding and appreciation of,
human rights in New Zealand society;
human rights in New Zealand society;
• encourage the maintenance and
• encourage the maintenance and
development of harmonious relations
development of harmonious relations
between individuals and among the
between individuals and among the
diverse groups in New Zealand society;
diverse groups in New Zealand society;
• promote and protect the full and equal
• promote and protect the full and equal
enjoyment of human rights by persons
enjoyment of human rights by persons
with disabilities.
with disabilities.
Education Act
Nothing in the Act to cover appropriate use  The physical restraint provisions set out the
Information
1989 (the Act)
of physical restraint in schools.
appropriate use of physical restraint by
teachers and authorised staff members in a
school.
They establish a positive authority for
teachers and authorised staff members to
use force in a school context.
Associated
Guidance for New Zealand Schools on
Statutory Rules set out what schools,
Official
guidance
Behaviour Management to Minimise
teachers and authorised staff members
Physical Restraint provided advice to
must do when using physical restraint.
schools, teachers and authorised staff
the
members on when and how they could use  Statutory Guidelines set out best practice in
physical restraint in a school. This guidance  using physical restraint. It is mandatory for
was non-statutory so it was voluntary for
schools, teachers and authorised staff
schools, teachers and authorised staff
members to follow all aspects of them.
members to follow all or some aspects. The
Ministry could withdraw the guidance at any
time.
under
The guidance advised that physical
restraint should ideally only be applied by
school staff trained in both its use and
emergency first aid. The guidance also
provided advice on alternatives for
untrained staff such as calling the Police, or
removing themselves and other students
from the situation and calling for help.
Released
Crimes Act 1961  The Crimes Act 1961 provides general
The Crimes Act 1961 are not affected by
defences to explain why a school staff
the Education Act 1989, and sit alongside
member was justified in using force on a
the provisions which regulate the use of
student.
physical restraint by a teacher or authorised
staff member on a student in a school.

The Crimes Act 1961 defences apply (as
they have always done) to the use of
physical restraint by an unauthorised staff
member in a school in an emergency
situation.
Health and
It is the duty of all school boards, managers  It is the duty of all school boards, managers
Safety at Work
and sponsors to keep al  staff and students  and sponsors to keep al  staff and students
Act 2015
healthy and safe. This includes having
healthy and safe. This includes having
policies and procedures for staff to follow to  policies and procedures for staff to follow to
ensure their health and safety; notifying al
ensure their health and safety; notifying al
serious injuries or near misses; and
serious injuries or near misses; and
monitoring the health and workplace
monitoring the health and workplace
conditions of school staff to prevent injury.
conditions of school staff to prevent injury. 1982

School staff must take reasonable care of
School staff must take reasonable care of
their own health and safety, and reasonable  their own health and safety, and reasonable
care that others are not harmed by
care that others are not harmed by
Act
something they do or do not do. They must  something they do or do not do. They must
follow any reasonable instructions given to
follow any reasonable instructions given to
them by the school board, manager or
them by the school board, manager or
sponsor, and cooperate with health and
sponsor, and cooperate with health and
safety policies and procedures.
safety policies and procedures.

If a board, manager, sponsor, teacher or
authorised staff member is facing legal
action under the health and safety regime
as a result of the use of physical restraint,
they can mitigate their legal liability if they
have acted in accordance with the Act,
Information
Rules and Guidelines.

Code of Health
The Code extends to schools catering for
The Code extends to schools catering for
and Disability
students with disabilities, particularly those
students with disabilities, particularly those
Services
who cannot participate in the classroom
who cannot participate in the classroom
Consumers’
without support. It confers rights such as to  without support. It confers rights such as to
Rights 1996
be treated with respect; to be free from
be treated with respect; to be free from
discrimination, coercion, harassment and
discrimination, coercion, harassment and
Official
exploitation; to dignity and independence;
exploitation; to dignity and independence;
to services of an appropriate standard; to
to services of an appropriate standard; to
effective communication; to be fully
effective communication; to be fully
informed; and to give informed consent. It
informed; and to give informed consent. It
the
places obligations on all people and
places obligations on all people and
organisations who provide health and
organisations who provide health and
disability services, including schools and
disability services, including schools and
teachers.
teachers.

Complaints about breaches of the Code
Complaints about breaches of the Code
under
can be made to the Health and Disability
can be made to the Health and Disability
Commissioner. If the Commissioner finds
Commissioner. If the Commissioner funds
that rights under the Code have been
that rights under the Code have been
breached, they can make
breached, they can make
recommendations to the provider; report
recommendations to the provider; report
their opinion to the relevant professional
their opinion to the relevant professional
body; make a formal complaint to the
body; make a formal complaint to the
relevant professional body; or refer the
relevant professional body; or refer the
complaint to the Human Rights Review
complaint to the Human Rights Review
Tribunal.
Tribunal.
Released

If a board, manager, sponsor, teacher or
authorised staff member is subject to a
complaint under the Code as a result of the
use of physical restraint, they can mitigate
their legal liability if they have acted in
2

accordance with the Act, Rules and
Guidelines.

1982
Act
Information
Official
the
under
Released
3

At a Glance:   Everything you need to know about the use of
Physical Restraint in NZ schools

Physical Restraint defined

Programmes that support positive behaviour in
The Education Act defines physical restraint as using
schools
physical force to prevent, restrict, or subdue the movement
Programmes that provide staff with the skil s and
of a student’s body or part of the student’s body.
knowledge to prevent and/or de-escalate violent student

behaviour:
•  PB4L initiatives: School-Wide; Restorative Practice;
Incredible Years Teacher.
•  Understanding Behaviour Responding Safely (UBRS) –
1982
delivered by MOE on request


Restraint - and professional judgement

Use physical restraint only as a last resort
When the teacher or authorised staff member reasonably

Act
believes that the safety of the student or of any other
•  Developing an understanding of chal enging children
person is at serious and imminent risk. .
and having a behaviour plan with whanau is important

•  Know the child. Know the triggers and remove. Learn
…then teachers or authorised staff need to use their
what works from the family. Work as a team
professional judgement to decide if to use physical

restraint.

•  It is far better to prevent dangerous situations
•  Physical restraint is a serious intervention. The aim
developing or use de-escalation techniques to calm
is to minimise or eliminate its use. If there is an
things down.
alternative to physical restraint, use the

alternative.
Information


Chal enging students’ behaviour may escalate…

De-escalation techniques
•  when they feel anxious or unsafe in situations
•  Create space and time
•  with proximity of others
•  Communicate minimal y and calmly
•  with voice tone or unhelpful verbal interactions
•  Think ahead – devise an exit plan; send for help if
•  when punished.
necessary
Official


Legal requirements

Using physical restraint
It is a legal requirement for schools to comply with the Act
Apply physical restraint only for the minimum time
and rules and to have regard to the guidelines. The Rules
necessary and stop as soon as the danger has passed.
the
cover:

Some restraints are dangerous when:
1.
Information to be made available
•  They inhibit breathing or communicating
2.
Authorisation of staff members who are not
•  Use pressure on neck/chest/face
teachers
•  Risk breaking or twisting joints (tackling, sitting, lying or
3.
Notifiying the use of physical restraint
kneeling on, headlocks, dragging or moving to another
under
4.
Monitoring the use of physical restraint
location
5.
Reporting on the use of physical restraint

6.
Keeping records
DO:
7.
Training and support for staff
•  Request safe restraint advice and instruction from your
8.
School policies
local Ministry office.

They wil  provide advice and instruction for the team
around a child with a behaviour plan that includes the
need for restraint.


Released

Go to the Guidelines for Registered Schools in New Zealand on the Use of Physical Restraint for:

•  Best practice guidance
•  What to do fol owing an incident involving physical restraint – eg.  Reviewing, documenting, reporting.

Meeting of Physical Restraint Advisory Group

Friday 14 September 2018, 9am-1pm

Ministry of Education, 33 Bowen St, RM 2.04

Agenda
1982

1
Welcome

Act
2
Introductions

3
Purpose of the meeting:

Together discuss insights from restraint data, and consider some
proposed changes

4
What is the data tel ing us, one year on?

5
Feedback themes and proposed changes  Information
•  Q and A
•  Scenarios and prompts
•  Supports and resources
•  Structure of the guide

6
Reporting forms
Official

7
Reflection forms

the
8
Resources and supports

We will break at 10.30 am. Lunch is provided at 1pm

under

Released

1982
Act
Refresh of 2017 Guidelines
Information for
Registered Schools in New
Zealand on the Use
Official of
Physical Rest
the raint
under
Released

Agenda
1982
Act
• What is the data tel ing us, one year on?
• Feedback themes, and proposed changes
• Q and A
Information
• Scenarios and prompts
• Supports
• Structure of the guide
Official
the
• Reporting forms
• Reflection forms
under
• Resources and supports
2
education.govt.nz
Released

One year on,
1982
what is the data tel ing us?
Act
139AD Rules on physical restraint
The rules must include—
(a) requirements to keep written records on the use
of physical restraint, including requirements to
Information
notify, monitor, and report on the use of
physical restraint
Official
Period Aug ‘17 to Aug ‘18 the
• 2658 reports of restraint (~222 per month)
• Total # of students: 1407 (0
under .18% of the 800,00
students in schools)
3
education.govt.nz
Released

What about the data?
1982
Act
Initial observations since the changes came into effect are:
Information
• Prevalence – about 12 incident reports a day are sent through for
Ministry to follow up
• Overwhelmingly, physical restraint is be
Official ing reported in
primary schools
the
• Boys are 5.5 times more likely to be physically restrained
than girls
under
• Some very young students are being physically restrained.
4
education.govt.nz
Released

School Type
1982
Act
Information
Official
the
under
5
education.govt.nz
Released

Gender
1982
Act
Information
Official
the
under
education.govt.nz
Released

Age distribution
1982
Act
Information
Official
the
under
education.govt.nz
Released

Physical Restraint in Plan
Individual Behaviour Plan?
1200
1137
1800
1655
1982
1600
1000
941
1400
Act
800
1200
580
1000
600
823
800
400
600
400
200
180
200
0
0
Yes
No
Unknown
Yes
No
Unknown
Information
Official
Student restrained by a Teacher or Authorised
Training received prior to incident?
staff member?
2000
1819
the
3000
1800
2525
1600
2500
1400
2000
1200
1000
under
817
1500
800
1000
600
400
500
90
200
43
22
0
0
Yes
No
Unknown
Yes
No
Unknown
8
education.govt.nz
Released

Number of physical restraints occurred on the
1st time physical y restrained?
same day
1800
2350
2500
1558
1600
1982
s
nt 2000
1400
1200
Act
1500
f stude
1000
912
r o 1000
be
800
500
274
600
Num
30
4
400
0
188
1
2
3
4
200
Number of incidents
0
Yes
No
Unkown
Information
Role of staff member who applied restraint
Injured?
(from May 2018)
1800
1686
600
528
1600
Official
500
1400
1200
400
1000
907
the
300
238
800
195
200
125
600
103
100
400
26
under
0
200
65
Teacher Teacher Aide Principal
Deputy
Youth
Other
0
Principal
Worker
Yes
No
Unknown
9
education.govt.nz
Released

Parents notified
1982
Act
Parents notified?
3000
Information
2500
2402
2000
Official
1500
the
1000
under
500
215
41
0
Yes
No
Unknown
education.govt.nz
Released

1982
Act
Information
Official
the
under
11
education.govt.nz
Released

Follow-up
1982
Act
Information
Official
the
under
education.govt.nz
Released

Any surprises with the data?
1982
Act
Information
Official
the
under
education.govt.nz
Released

Feedback themes and proposed responses
1982
Act
Technical aspects of the law
• How does the changes in the Education Act fit with the Crimes Act?
• Questions and answers in the guide?
Information
Continued confusion about what staff members can and can’t do.
• How does physical restraint differ from acceptable contact?
Official
• More information needed on what we can do?
• Scenarios, prompts?
the
under
14
education.govt.nz
Released

Feedback themes and responses, continued
1982
Act
Language and structure of the guide
“….the guidelines must include-
a.
Best practice examples for the use of physical restraint; and
b.
Other examples of best practice in behaviour management” (Ed. Act, 139AE)
The guide is overly negative and doesn’t provide enough informat
Information ion on what to do
• Do we need a forward that outlines the law or can we footnote this. Can we place the
legislation on page 4 further on in the guide.
• Do we need to change the content order (e.g. ho
Official w the guidelines were developed and
responsibilities later – key principles up front, good practice guidance
• What language items ‘jar’ – tell us the
• Do we need more information about calming strategies and teaching emotional
regulation skills
under
• What else do we need to change/need more of/less of?
education.govt.nz
Released

Feedback themes and proposed changes, continue
1982 d
Act
What happens to the data?
• Why is being collected?
• What happens to it?
• Questions and answers
• Information made available to community of practice, including
Information supports?
• Changes needed to the forms?
Training and support
Official
• Concerns that initial teacher education not preparing teachers
• Training for support teachers the
• Mixed reviews of UBRS
• Addition of supports and links (school policies behaviour, behaviour plan PB4L Tier 2,
restorative practices, search a
under nd seizure)
• Review of UBRS training and needs
education.govt.nz
Released

Any thing that we have missed
1982
Act
Information
Official
the
under
education.govt.nz
Released

Questions and Answers

Q.
Why was the law changed?
A.
Legal framework is consistent with other sectors in New Zealand where
physical restraint is used. It was designed to bring clarity to a legal y grey
area where potentially school staff could be charged under the Crimes Act
1961 as a result of using physical restraint. Staff also needed to take into
account
•  The New Zealand Bil  of Rights Act, 1990
•  The Health and Safety at Work Act, 2015
1982
•  The Code of Health and disability Services Consumers Rights, 1996

The international evidence also tel s us that physical restraint is a last resort,
Act
high risk action that should be regulated in schools particularly to prevent
injury or death and to ensure the safety and wel being of both students and
teachers.

Q.
Why did the Ministry publish guidelines?
A.
The guidelines were published to take into account of the changes to the
Education (Update) Amendment Act 2017 and the Education (Physical
Restraint) Rules 2017 (the rules). The act and the rules set out what schools
must do when using physical restraint and the guidelines set out best practice
Information
in preventing using, monitoring and reporting on physical restraint

Q.
Why have the guidelines been refreshed?
A.
The legal framework regarding physical restraint has been in place for a year
now. We have reviewed these in light of their use and the feedback we have
received.
Official

Q.
What changed as a result of the refresh?
the
A.



Q.
What constitutes physical restraint?
A.
The Act defines physical restraint as using physical force to prevent, restrict,
subdue the movement of a student’s body or part of the student’s body. The
under
legislation limits the use of physical restraint on students to teachers or
authorised staff members.

The fol owing situations involving physical contact happen in schools every
day. They are not examples of physical restraint and do not have to be
reported to the Ministry:

•  Temporary physical contact, such as a hand on the arm, back or shoulders to
remove a student from a situation to a safer place.
Released
•  Holding a student with a disability to move them to another location, or help
them to get in a vehicle or use the stairs.
DRAFT – not for wider circulation as these are subject to change 20 September

•  The practice of harness restraint, when keeping a student and others safe in
a moving vehicle, or when recommended by a physiotherapist or occupational
therapist for safety or body positioning.
•  Younger students, especially in their first year of school, sometimes need
additional help. For example, you may “shepherd” a group of younger
children from one place to another.
•  Staff may hold the hand of a young student who is happy to have their hand
held for a short time.
•  Staff may pick a young student up to comfort them briefly.
1982

Q.
Under what circumstances can schools use physical restraint, and
who is allowed to use it?
Act
A.
Physical restraint should only be used where there is a serious and imminent
risk to the safety of students, staff or others. It should be used in a
responsible way, proportionate to the situation and only for as long as
needed to ensure everyone is safe.

Physical restraint can be used by teachers or authorised staff members.
Authorised staff members are employees authorised by their employer (e.g.
board of trustees, sponsor or manager) to use physical restraint.

Physical restraint is a serious intervention.

Information
Situations where it would be appropriate to use physical restraint include:
•  Breaking up a fight
•  Stopping a student from moving in with a weapon
•  Stopping a student who is throwing furniture close to others who could be
injured by it
•  Preventing a student from running onto a road.
Official


Q.
What was the situation for teachers in schools and kura when using
physical restraint prior to
the   the legislative change?
A.
There was nothing in the Act to cover appropriate use of physical restraint in
schools and kura. Teachers and support staff in schools and kura had to
interpret what general law such as the Crimes Act 1961 and the New Zealand
Bil  of Rights Act 1990 allowed them to do.

under

Q.
If physical restraint is a last resort, what alternative techniques
should teachers be using?
A.
The best thing teachers can do is try to prevent a situation developing to the
stage where safety becomes an issue. Most schools use positive behaviour
management practices to deal with inappropriate or dangerous student
behaviour.  If things do start to develop there are a number of ways to try to
cool things down and ‘de-escalate’. Training is available to help schools and
teachers learn how to do this.
Released

DRAFT – not for wider circulation as these are subject to change 20 September

Q.
Why are schools being required to report incidents of physical
restraint to the Ministry?
A.
Physical restraint is a serious intervention. The emotional and physical impact
on the student being restrained and the person doing the restraining can be
significant. There are legal and reputational risks if a student is harmed.

If a teacher or staff member physically restrains a student the incident must
be reported to the Ministry of Education and the employer (Board of
Trustees, sponsor of a partnership school kura hourua, or manager of a
private school). Reporting incidents also enables the Ministry of Education to
1982
provide to schools to manage challenging behaviour

Act
Q.
What does the Ministry of Education do with the data and
information?
A.
The Ministry is using the information to provide appropriate support to
schools and students when there are incidents of physical restraint on
students. The data has indicated that the total number of students being
restrained is very small, many of these students are being restrained multiple
times and 2/3rds involved students with plans in place. The information also
has implications for the way we provide support to schools to manage
challenging behaviour.

Information

Q.
What advice and support is available to schools about the use of
physical restraint?
A.
The legislation and rules set out what schools must do. The guidelines outline
good practice in using physical restraint, and monitoring and reporting on the
use of physical restraint. The rules and guidelines were developed with the
help of a cross-sector advisory group.
Official

The training workshop Understanding Behaviour, Responding Safely, has
been offered to all schools. It focuses on prevention and de-escalation
the
strategies and is run by experience behaviour management specialists (who
also offer ongoing support). Any school interested in the workshop should
contact their local Ministry of Education office.
  Some of the students with the most challenging behaviours wil have specific
physical intervention and restraint techniques in their individual student
under
plans. Where the Ministry is part of the team supporting such a student
specific training for staff in using those techniques is available.


Q.
Do the restraint rules and guidelines apply in private and
partnership schools?
A.
Yes.

Released

DRAFT – not for wider circulation as these are subject to change 20 September

Q.
What should school and kura staff do if they see an incident of
physical restraint or seclusion and are concerned?
A.
They should speak to the principal and the Board of Trustees in the first
instance. If they are not happy, they should contact the Ministry of Education.
The same advice applies to family or whanau.

Q.
Are unauthorised staff and teachers allowed to use restraint in an
emergency are they covered under the current laws?
A.
The Act provides a framework for the use of physical restraint in schools that
1982
is based on its use by authorised staff. Unauthorised staff using physical
restraint are not covered by the Act and may be in breach of school policy.
Everyone is justified in using, in the defence of himself/herself or another, Act
such force as, in the circumstances as he/she believes them to be, it is
reasonable to use (Crimes Act s48). Justified means not guilty of an offence
and not liable to any civil proceedings (Section 2, Crimes Act 1961).
o  Was the purpose defending themselves or another?
o  What were the circumstances the defendant believed them to be?
o  Was the force reasonable?
o  Does the school have a robust authorisation process and behaviour
policy?

Information
Q.
Can teachers and authorised staff members use physical restraint to
protect property?
A.
No. The Education Act s139AC does not allow restraint to be employed for
the sole purpose of protecting property. Sections 52 - 56 of the Crimes Act
permit limited use of force to protect property. These sections put human life
and safety even for the person doing wrong, above protecting or possessing
property. The force required to protect property excludes striking or causing
Official
physical harm to another person

the
Seclusion

Q.
What is covered by the ban on seclusion?
A.
Schools, early childhood services and ngā kōhanga reo must not use
seclusion.

under
Seclusion is placing a child or student in a room involuntarily, alone, and from
which they cannot freely exit, or believe they cannot freely exit. An action
must meet al  three of these tests to be considered seclusion.

Q.
Are any schools still using seclusion rooms?
A.
No - seclusion is prohibited under the legislation.

Q.
Does this mean that my school can no longer use time out?
A.
No. Time out is where a child or student voluntarily takes themselves to an
Released agreed space or unlocked room to de-stimulate or calm down, or when a
teacher prompts a disruptive child or student to work in another space.

DRAFT – not for wider circulation as these are subject to change 20 September

Teachers should be very explicit when using time out that the child or student
is free to come out of the room whenever they choose. This clarity is
consistent with good practice around using time out in schools.

1982
Act
Information
Official
the
under
Released
DRAFT – not for wider circulation as these are subject to change 20 September

Restraint and Seclusion Scenarios
A panel discussion on restraint and seclusion was held at the Education Law
Conference 2018. The discussion was chaired by a school principal and the panel was
made up of MoE practitioners and education lawyers. The panel discussed seven
scenarios, in conversation with the audience of educators and legal professionals
Task: Read through the following scenarios. Determine the serious and imminent danger, if
restraint would be justified, what advice and guidance you would give for each one.
1982
Scenario One
A group of Year 13 students were playing touch rugby on the back field. The game turned sour
Act
when student ‘A’ began mocking student ‘B’s mother as a joke. Student ‘B’ became enraged
at the insult and began to seriously assault student ‘A’.
A teacher on field duty came upon the assault with other Year 13 students watching. Student
‘A’ is on the ground and is at risk of serious injury, while student ‘B’ is so angry he is not listening
to anyone, yelling ‘you’re dead meat’. The teacher is unsure of his ability to intervene to stop
the fight or whether to ask the other students to assist. The field is some distance from the
office and he is very concerned about his obligation to protect student ‘A’.
Would restraint be justified?
Would you recommend using other students in this situation?
Information
What would you recommend?

Panel Recommendation
•  Restraint can be justified (in order to create a space between the students and prevent further
harm)
•  Try to remove the audience and support the provision of a distraction (e.g. whistle, siren)
Official
•  Schools must address NAG 5 to keep students safe.  Recommend having a whole staff
discussion about possible situations, obligations and capabilities and devise a support system.
Teachers should not be alone in dealing with a fight, back up is required.
•  Use of professional teacher judgement comes into effect at the time of the situation - this may
the
have to be justified formally later. If teachers do not feel able to intervene they do not need to.
Their intention should be made clear to the fighters and audience. The incident must be
reported.
•  Schools must address NAG 5 to keep students safe.  Recommend having a whole staff
discussion about possible situations, obligations and capabilities and devise a support system.
Teachers should not be alone in dealing with a fight, back up is required. Remembering that
under
•  to discuss as a school their system “protocols’ around how they wil  get help, and the level
staff have also been injured intervening in fights on schools grounds
•  Need of response. This needs to be clear for students, staff and parents what e protocols are.
•  Other students cannot be asked or encouraged to intervene
•  Do ask students to get help
•  Try to remove the audience and support the provision of a distraction (e.g. whistle, siren)
•  Schools must address NAG 5 to keep students safe.  Recommend having a whole staff
discussion about possible situations, obligations and capabilities and devise a support system.
Teachers should not be alone in dealing with a fight, back up is required.
•  Need to discuss as a school their system around levels of response and be clear when students
Released
are this age what they can do – needs to be transparent for students, staff and parents what the
protocols are.

20 September 2018

Scenario Two

James, age 45, was a police officer for 15 years before deciding to retrain as a secondary
school history teacher.  James is an expert in unarmed combat and pursued karate as a
sport for 20 years. He is also experienced in the use of firearms, having been an armed
1982
offenders’ squad member whilst in the police.

During a class, James hears a scuffle in the corridor outside his room.  He looks out and
sees two well-built Year 13 male students fighting.  They appear equally matched.  While
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punches are being thrown, it does not appear that either is doing serious harm to the other.
James moves into the corridor and orders them to stop fighting.  They carry on. He orders
again and they ignore his request. James then takes one of the students by the arm in an
attempt to pull him away from the other.  The student turns and swings a punch at James.
James responds by putting the student into a painful arm-lock, combined with gripping the
student’s head to bring him to his knees on the ground.  The scuffle then ends.

The student suffers no lasting injury or ongoing pain. However, the student and the parents
complain to the school, saying that James used excess force, causing significant pain and
humiliation.

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What would you recommend?
Does the teacher have any potential criminal liability?
Should he be exposed to professional disciplinary proceedings?
Should the school take employment disciplinary action against him?

For the record: James is not fictitious and he opted not to physically intervene.  He chose to
call the police after the students ignored his instructions to stop fighting. Before the police
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arrive, one of the students lost his front teeth.

Again, does the teacher have any potential criminal liability? Should he be exposed to
the
professional disciplinary proceedings? Should the school take employment disciplinary action
against him?

Panel Recommendation
Response as above Restraint can be justified (in order to create a space between the
students and prevent further harm). Distract, get help, have a protocol in place
under
•  Other students cannot be asked or encouraged to intervene
•  Do ask students to get help
•  In the case of the ‘arm-lock’ and parental complaint, Crimes Act Section 42: preventing breach
of peace (e.g. fighting) could justify restraint. “Justified” means not liable to criminal
prosecution or civil proceedings.
•  Risk: If a single limb is held this can expose you to a reaction from the other limbs and head.

Scenario Three
Released
Student ‘A’, who has known ‘anger management’ issues was working quietly on his Year 12
Art folio when another student accidentally spilt black ink onto his work. Student ‘A’ lost the
plot, jumping up shouting ‘you’ve f….g ruined it, and proceeded to rip up his board. He then
began to attack other Year 12 Art folios.
20 September 2018

The teacher recognised he is in an extremely emotional state and not listening to reason.
Although there is no physical risk to anyone, the Art folios represent hundreds of hours of work
by students and are an essential part of their NCEA assessment, which can’t be redone if they
are destroyed. The teacher is not sure if restraint is justified in these circumstances or to just
remove the other students from the Art room.
Would restraint be justified?
What do you know about wil ful vandalism?
What would you recommend?

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Panel Recommendation
•  Restraint is not justified in terms of the Education Act Restraint Rules, as it is property.
•  From a legal perspective staff may be defended in a court of law through the Crimes Act
Act
Section 41 if they choose to restrain in this circumstance.
•  Consider a ‘fire’ situation in terms of health and safety policy; whereby students gather up
items and exit in an orderly manner.
•  Some students may need further support emotionally if they have lost their work.  The school
can follow up with NZQA for next steps.  Preventative steps could have included safe storage
of items, ongoing records of work and submission / evidence of finished items.
•  The school receives funding for vandalism in their Operations Grant. Insurance may not
cover vandalism. A top up of this funding may be granted under some circumstances - the
BOT would be expected to have a Vandalism Policy.

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Scenario Four
A student who is diagnosed with Autism has had a confrontation with the Deputy Principal of a
primary School. When asked to report to the Principal’s office, he rushes to the school fence
and begins climbing. There is a busy motorway on the other side of the fence. The DP
perceives a real threat to the student’s safety but knows if he tries to pull him down from the
fence, he may cause injury to the student or himself.
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Would restraint be justified?
What would you recommend? the
Would it make a difference if this student was secondary age?

Panel Recommendation
•  Use of temporary physical contact may be necessary in this situation.
•  Whilst the fence is an obstacle, this can be similar to running onto the road. Failure to act may
cause further injury (motorway)
under
•  Support through remaining calm, stating intent “I’m here to help” and sending for a staff
member who has a relationship with the student.
•  If the student is prone to running away and the risk is already known, agreed strategy with
family and staff can be planned and communicated to all members of school staff.

Released

20 September 2018

Scenario Five

Ms X, an art teacher, reported to the DP that she believed that student A took an ‘up the skirt’
video on his phone while he was in her class.  The P has spoken to few students in the class
who confirmed the teacher’s account and add that he planned to upload it on his Facebook
page.  It is now 3pm and student A is in the DP’s office denying the allegation. He is refusing  1982
to hand over the cell phone and insisting he has to leave to catch a bus.

Would restraint be justified?
What do you know about surrender and retention?
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What would you recommend?
  Panel Recommendation
•  There should be no physical contact. The family should be informed.
•  Follow Surrender and Retention Guidelines (2014).
•  Refusal to hand over, use school discipline process, even if they delete the evidence.
•  Netsafe can support situation and retrieval of material.

Scenario Six

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Student A is transitioning into a new primary school.  He does not follow the class routine and
ignores the teacher’s requests to join the class on the mat.  Student A leaves the
classroom.  The teacher follows and sends another student to reception to get another adult
to supervise the class.  Student A climbs to hide on the adventure playground. The teacher
tries to encourage Student A to come down and return to class.  Student A throws a stone
nearby the teacher.  Another staff member sees the stone being thrown and comes to assist
the teacher.  They agree that his behaviour is unsafe and are now deciding how to transfer
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the student to the principal’s office.
Would restraint be justified?  the
What would you recommend?
What happens if the Ministry of Education witnesses restraint, and the school do not report
it?

Panel Recommendation
under
•  No restraint is justified.
•  Give space to decrease the risk of injury
•  Supervise only, no interaction, wait it out (can take over an hour).
•  School system to determine support for teacher at this time and logical consequence for
student when he is ready to engage again.
•  The Education Council Code of Conduct 2.1 states that a teacher wil  work in the best
interests of learners by promoting the wellbeing of learners and protecting them from harm.
Therefore, inappropriate handling such as physically grabbing, shoving or pushing, or using
physical force to manage a learner’s behaviour is not permissible.
•  If inappropriate handling occurs or restraint occurs then the school must report it.
Released
•  If Ministry of Education staff are aware the school have not reported an incident they have
witnessed then Ministry of Education staff should discuss with the Principal and report it in
compliance with the Restraint Rules and Child Protection Policy.  The BOT may also be
requested to be involved.

20 September 2018

Scenario Seven

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In the New Entrants class there is a child who is distressed at beginning of the day as they
don’t want their parent to leave.  The child wil  cry and cling onto their mum or dad and not
want to stay in the classroom.  When their mum or dad starts leave they run after them and try
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to leave the classroom to find their parent.  The teacher is not sure whether they can intervene
as would that mean that a restraint notification form would need to be completed?
Would restraint be justified?
What would you recommend?
Are there conflicting views about this situation?

Panel Recommendations
•  Consider acceptable physical contact (Page 7)
•  Holding a New Entrant’s hand and/or supporting them to move to a new location and providing
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them with comfort when they are upset about leaving their parent are all acceptable responses
to a distressed child and would not be seen as restraint.
•  Parents can often feel anxious about a child starting schools and contribute to the separation
issues. Building a relationship with the parents can help to ease separation worries on both
sides.
•  Having a plan and a routine to follow with the child’s parents to help support the separation
would be important
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the
under
Released
20 September 2018

Document Outline