Appendix E
BRIEFING NOTE: Physical Restraint in Education
Date:
4 May 2018
Priority:
Medium
Approved by:
Graham Stoop
DDI:
027 689 9039
Purpose
1.
Following public interest in cases where teachers have been disciplined for using
force unreasonably or without justification, you asked the Education Council of
Aotearoa New Zealand (
the Education Council) to facilitate discussions on the use
of physical restraint in education.
2.
This paper provides you with an update on those discussions.
Background
3.
In 2017 there were changes to the Education Act 1989 (
the Education Act), with
accompanying guidelines, making it explicit that teachers can use physical restraint
when someone’s safety is at “se ious and imminent risk” (section 139AC (1)(a) of the
Education Act).
4.
Since then we have heard from teachers and parents about how strongly they feel
about the appropriate use of physical contact in education settings especially when
situations involve health-related behavioural issues.
Discussing physical restraint
5.
It is clear from discussions with teachers, parents, and others involved with
under the Official Information Act 1982
supporting children and young people in education, that the use of restraint is not an
issue that can be considered in isolation.
6.
There are three key stages that have been identified:
(1) Preventing the need to use physical restraint which includes understanding
behaviour
(2) Knowing when and how to use physical restraint appropriately when it is
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(3) After restraint is used, making sure children and teachers are supported and that
lessons learned can affect change.
Prevention
7.
The reasons why teachers sometimes need to consider using restraint are
fundamental to any discussion on resolving concerns about its use. We consistently
heard that the use of physical restraint on learners, even for the purposes of
preventing harm, is not a desirable option for anyone.
8.
Both teachers and parents say schools need to work more closely with whānau to
understand the needs of each learner so that appropriate responses to manage
behaviour are in place when needed. More emphasis and investment is needed to 1982
support teachers to avoid the use of restraint and to better understand their learners.
Knowing when and how to restrain appropriately
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9.
The current guidelines have widespread support from parent and teacher groups we
spoke with. However, teachers have asked for clarification in the guidelines to
support decision making and action when physical restraint is required.
10. Consistent with the Education Council’s submission opposing the proposal in the
Supplementary Order Paper that resulted in s 139AC,1 those proposing the repeal of
that section say it is necessary because it conflicts with defences available under
other legislation including the Crimes Act 1961. This has created confusion and angst
in the profession, leading to teachers walking away from situations because they are
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not confident to use restraint because they fear punitive action.
11. For example, even where there is a clear serious and imminent danger of harm, such
as a child running onto a busy road, some teachers said they would be worried about
restraining the child. There has also been concern expressed about whether a
teacher would be acting lawfully to prevent harm, such as by stepping in to prevent
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a fight between students.
12. The point made is that at the moment in time when a child or young person may be
the
putting themselves or others at risk in some way, teachers need clarity around what
they can do.
After physical restraint is used
13. Although concern has been expressed about the arduous reporting requirements if
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restraint is used, it is acknowledged that data can be used to identify and target
support. We have heard that this will only be effective if the right data is collected
and interpreted in the right way.
14. Continuous improvement should also be part of the training and support package to
support schools, learner and communities.
Key themes
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15. Key themes from the discussions on restraint are attached at appendix B. The
discussions facilitated by the Education Council were:
1 The relevant part of the Education Council’s submission dated 30 January 2018 is appended to this
briefing.
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20. For change to be impactful, we have heard that the guidelines need to be aligned
with other relevant legislation and provide specific guidance on what teachers can
do, with an increased investment in training and support.
21. Underpinning this must be a strong partnership and agreement between teachers,
other experts, whānau and communities.
Next steps
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22. As the Ministry of Education (the Ministry) is the agency responsible for the Education
Act and accompanying guidelines, and for providing much of the support currently
available to schools, we suggest the next step is to discuss matters with the Ministry.
Act
Information
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the
under
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SUBMISSION
Appendix A
Extract from Education Council Submission on the Supplementary Order Paper
250 regarding seclusion and restraint – Education (Update) Amendment Bill 30
January 2017
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Act
Physical Restraint
Limits on the use of physical restraint (section 139AC)
We do not agree there should be additional provisions placed in primary legislation
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to set out the circumstances where teachers or other educational staff members
can justifiably use physical restraint on a student. We consider the existing legal
and regulatory provisions are sufficient to protect the rights, health and safety of
students and others, and provide adequate protection for teachers to use physical
restraint in specified circumstances. Instead, we consider best practice guidelines to
be a much more appropriate lever to achieve consistent best practice.
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Definition
We have serious concerns that proposed definition of physical restraint2 is too
broad and the threshold for using physical restraint is too high. We consider that
this proposed amendment may lead to a raft of unintended consequences through
the
misinterpretation or misunderstanding, whereby teachers fear that cannot have any
physical contact with children and young people in the course of their valid
professional role. Likewise, it may result in a wave of complaints against teachers
who may have used physical contact in reasonable circumstances, but where
the high threshold of the safety of someone being at serious or imminent risk is not
met. A spike of unwarranted complaints would undermine confidence in the
“We have serious concerns
under profession.
that proposed definition of
physical restraint is too broad
There are numerous situations where it may be entirely appropriate for a teacher to
and the threshold for using
use
“physical force to prevent, restrict or subdue the movement of a student’s
physical restraint is too high.”
body or part of their body” and where the safety of someone is not at
serious and
imminent risk. Examples include:
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2 “
Physically restrain, in relation to a student, means to use physical force to prevent, restrict, or subdue the movement of the
student’s body or part of the students body”
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• Physically escorting using physical contact to gently assist or prompt a child or
student in performing a task or move them from one area to another
• Gently holding the hand of a young student to provide comfort
• Picking up or holding a child or young student to comfort them
• Holding a child or student with disabilities to move them to another area or help
them get into a vehicle
• Guiding or ushering a child or young student who is engaged in disrupt ve
behaviour (such as throwing water or paint) away to another area
• Briefly holding (without undue force) a very young child or a child or student
with cognitive or developmental disorders in order to calm them
• Using calming techniques which involve physical contact such as “deep touch
pressure techniques” for students with autistic spectrum disorders
• Physically moving students from one another to break up a minor altercation
where they are not responding to verbal instructions to desist from fighting,
but where the safety of the students or others is not deemed to be at “serious
or imminent risk” (e.g. where they are pulling each other’s hair or are pushing at
each other in a non-harmful way)
• Lifting a young child or student into a car restraint or placing them in a
wheelchair, push chair or high-chair
• Holding or supporting a young child or student with disabilities in order to
perform or assist them with personal care tasks, such as toileting, changing
diapers or bathing.
“We have particular concerns
We have particular concerns that the proposed wording of the legislation does
not take into account best practice for working with children and students with
that the proposed wording
disabilities, where holding or using physical contact (which may involve “restricting
of the legislation does not
or subduing the movement of a student’s body or part of their body”) is often
take into account best
necessary and appropriate. Indeed, the recent Ministry of Education publication
practice for working with
Guidance for New Zealand Schools on Behaviour Management to Minimise Physical
children and students with
Restraint (p.3) refers to examples which they state are not physical restraint, but
disabilities, where holding or
which could arguably still meet the definition in the proposed Bill.
using physical contact (which
may involve “restricting or
This adds further weight to our recommendation that policy on the use of physical
subduing the movement of a
restraint is best addressed in best practice guidelines where the complexity of the
issues, and the range of circumstances where physical restraint can be reasonably
student’s body or part of their
used, can be more fully explained.
body”) is often necessary and
under the Official Information Act 1982
appropriate.”
Existing provisions against inappropriate or excessive use of force
We consider the current legal and regulatory provisions, definitions and
interpretations which prohibit the use of inappropriate or excessive force are
sufficient to protect the rights of children and young people and are already well
understood. Again, we disagree there needs to be new legislation specific to the
education sector. Current provisions against the excessive use of force already
exist, and include:
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Crimes Act 1961. Section 62: Excess use of force: Everyone authorised by law
to use force is criminally responsible for any excess, according to the nature
and quality of the act that constitutes the excess.
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Crimes Act 1961. Section 194: Assault on a child: Everyone is liable to
imprisonment for a term not exceeding 2 years who (a) assaults3 any child
under the age of 14 years; or (b) being a male, assaults any female.
Crimes Act 1961. Section 196. Common assault: Everyone is liable to
imprisonment for a term not exceeding 1 years who assaults any other person
The Education Act 1989, Section 139A: This essentially banned the
corporal punishment and prohibits the use of force “by way of correction or
punishment towards any student or child”.
Rule 9 of the Education Council Rules 2016: These rules set out the criteria for
reporting serious misconduct of teachers. This includes (a) the physical abuse
of a child or young person, (c) the psychological abuse of a child or young
person, (f) ill treatment of any child or young person in the teacher’s care.
“There are already legal and
There are already legal and professional consequences if a student is harmed
professional consequences if a
or physical force is used inapprop iately. They could be charged with assault
under the Crimes Act and the incident could be investigated by the New Zealand
student is harmed or physical
Teachers Disciplinary Tribunal which has the powers to cancel, or suspend
force is used inappropriately.”
a teacher’s registration and practicing certificate, impose fines and impose
conditions.
There are likely to also be employment consequences for a person who is found to
have acted inappropr ately or illegally.
Existing legal provisions which set out the justifiable use of force
We consider the existing legal provisions which set out the circumstances
where people
can use physical force protect them or other people from harm are
sufficient, and that specific legislation for the education sector in this regard is
unnecessary.
Provisions in The Crimes Act 1961 which allow justifiable force to be used are set
out in sections 414, 425, 436, and 487.
Furthermore, the proposed amendments would actually establish a higher legal
threshold for teachers and authorised persons for the circumstances when they
can use physical force than exists for the general public as set out in sections
under the Official Information Act 1982
42, 43 and 48 or the Crimes Act. We see this as unhelpful and unnecessary. It
also actually does the opposite of what this legislation was intending in part to
address, that is, to remove the risk of legal liability for school personnel who use
physical restraint.
3 The Crimes Act, Section 2(1) interpretation: “assault” means the act of intentionally applying or attempting to apply force to the
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person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the
person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect
his or her purpose; and “to assault” has a corresponding meaning.
4 Section 41: For the prevention of suicide
5 Section 42: “Preventing breach of the peace: Everyone who witnesses a breach of the peace is justified in interfering to
prevent its continuance or renewal, and may detain any persona committing it in order to give him or her into the custody
of a constable…provided that the person interfering shall use no more force than is reasonably necessary for preventing the
continuance or renewal of the breach of peace, or than is reasonably proportionate to the danger to be apprehended from its
continuance or renewal.”
6 Section 43: “Suppression of riot: Everyone is justified in using such force as is necessary to suppress a riot, if the force used is not
disproportionate to the danger to be apprehended form the continuance of the riot”.
7 Section 48: Self-defence and defence of another: Everyone is justified in using, in the defence of himself or herself or another,
such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
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Private schools are excluded from this proposed provision
Notwithstanding our strong recommendation that the proposed amendments
do not include physical restraint, if the decision is made to include it, it should
apply in all early childhood education centres and schools, including private and
partnership schools. As currently drafted, private schools are excluded.
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We understand this is consistent with Section 139AAA Surrender and Retention
“As the professional body
of Property, but we see no valid reason why private schools should be exempt.
As the professional body for teachers, we consider it important that all teachers
for teachers, we consider it
are held to the same high standard of conduct, whether they are employed at a
important that all teachers
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state school, partnership school or an independent (private) school. Likewise it is
are held to the same high
important that our legislation entitles all New Zealand children and young people
standard of conduct, whether
to be safe and receive a high quality education, including the right to be free from
they are employed by at a state
assault or from arbitrary detention.
school, partnership school
or an independent (private)
Guidelines on Physical Restraint (proposed Section 139AE)
school.”
We support this proposed section which places into legislation the requirement for
the Secretary of Education to issue guidance on the use of physical restraint and
that boards, principals and teachers must have regard to the guidelines.
“We consider guidelines to be
We consider guidelines to be a much more appropriate tool to set out the
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expectations and to achieve consistent practice on this complex matter, than
a much more appropriate tool
primary legislation.
to set out the expectations and
to achieve consistent practice
We note that, as currently drafted, private schools are excluded from this clause.
on this complex matter, than
As stated previously, we have major concerns about this exclusion and strongly
primary legislation.”
recommend s139AE is amended to include private schools. We know of no good
reason why private schools should be exempt from applying best practice on this
issue.
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We welcome the recent guidance issued by the Ministry of Education
Guidance for
New Zealand Schools on Behaviour Management to Minimise Physical Restraint. We
are also pleased to see that the Ministry of Education is supporting this guideline
the
with the professional development workshops to teachers on responding to
challenging behaviour. We do have some suggestions on ways to strengthen
the guideline, in order to remove any ambiguity about the circumstances where
physical restraint can be used. We will be raising this with the Ministry of
Education separately from this submission.
under Early childhood education sector
We note that the proposals on physical restraint are for the schooling sector only
and exclude the early childhood education sector. The Ministry of Education’s
regulatory impact statement on this proposal suggests making consequential
amendments for similar provisions for early childhood education services and
ngā kōhanga reo through the Education (Early Childhood) Regulations 2008 and
the Education (Playgroups) Regulations 2008. We welcome any opportunity to be
involved in these discussions and the drafting of any regulation and guidance for
this sector.
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because they set out the expectations of behaviours and
practice in teaching.
3. Reporting
Agencies need to be careful when establishing reporting
requirements. Teachers and staff say the reporting forms and
process make reporting onerous.
Reporting only has value if there is follow-up to resolve the
issues the reporting exposes. There needs to be a clear
strategy (what is being done with the data and why) and the
value of it needs to be explicit to everyone.
We need to improve the understanding of what the data
means rather than making assumptions about it. Some of the
reporting has led to people questioning the practice of some
teachers rather than looking at what is behind the need to
restrain (for example, high restraint numbers among younger
children is actually expected because of behaviours and
required care of younger children rather than necessarily poor
teacher performance).
Parents and communities need to be able to trust that
information held about their child is safe and is treated
sensitively.
Some parents have said reporting is a huge asset and that
some schools are concerned because it will highlight that
children with special needs are being restrained the most and
therefo e schools are not appropriately responding to health-
related behavioural needs. Reporting, done right, has its place
in understanding issues and targeting resource, and in being
transparent. But the right data must be collected, the process
not arduous, and the data interpreted appropriately.
4. Training and
Training and support is critical for successful implementation
support
and outcomes. The current resources are inadequate and
investment is needed. Current training is variable and often
does not add value. Not everyone or every scenario is the
under the Official Information Act 1982
same and so the training needs to be tailored – currently
resources are being wasted. One size does not fit all
particularly as some schools need more detail and structure
than others because of background of children and young
people they enrol.
Best practice sharing is essential – resources and scenarios
are needed to model this practice. Good training and support
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can help minimise reporting requirements because teachers
and staff are better equipped to manage behaviours.
Good training is about care, not compliance. It tells the story
simply to remove confusion and is collaborative with a student
and parent voice. It is not about blame but it needs a robust
framework to operate from whether its legal or guidance, and
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it should be about practice and treatment rather than about
policy and procedure.
We need to be clear about who is responsible for professional
development and consider if it should be mandatory in this
area. Some parents have suggested a national programme
should be rolled out.
Beginning teachers need to be better prepared.
5. Engagement
Some parents have said that schools are not being honest
about the use of restraint and this is what is making it hard for
parents to engage. Instead they are having to fight the system
rather than working together.
Schools agree it is important to work together – teachers,
school, child, parent, community, education and health
professionals. A child does not come into education alone.
There is a collective responsibility by everyone to be open and
honest and have a plan to understand and best support each
child and young person. It is also important there is a
seamless transition of the child and knowledge between each
sector – from early childhood into primary into secondary
schooling.
Child-centred decisions need everyone involved.
Schools need strong engagement within their own school
environmen to talk about what they already do, what works
and what needs to change.
The system is massively devolved and principals and boards
are on their own.
6. Societal issues
There are broader societal issues impacting on teachers doing
their job. Are teachers also social workers and police officers?
There are more extreme behaviours being exhibited by
under the Official Information Act 1982
children and young people, and society’s expectations are that
every school will fix every problem as well as teach students.
It is incredibly complex. Teachers are asking how much
training they are expected to undertake to stay on top of these
problems which often sit outside of their skill set and role.
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