Bulletin 9 - Physical restraint of students
Legal Issues Bulletin 9 - Physical restraint of students
Legal Issues Bulletin 9 - Physical restraint of students
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The department and its staff owe a duty of care to students to take reasonable care to protect them against risks of not insignificant injury which are reasonably foreseeable. This duty extends to taking reasonable care to prevent a student from injuring him or herself, injuring others or damaging property. In order to meet this duty, school staff may be required to consider the need to physically restrain students.
Any decision taken by staff to physically restrain a student should be exercised only in those circumstances where there is a real and immediate threat of injury to a person or serious damage to property and there is no other practical way of preventing the likely injury or damage.
Staff must not jeopardise their own safety in such situations. Staff should only physically intervene if they are confident they can do so without being injured. In this context, it is important that staff seek out and implement any relevant departmental school guidelines, strategy or advice for managing student behaviour.
Any physical restraint of a student should be only that which is reasonably necessary for the circumstances to prevent the feared injury or serious damage. What is reasonable physical restraint will vary from case to case depending on issues such as the age, size and strength of the student and staff member, what the student is actually doing that gives rise to the fear and where the behaviour is occurring. It is stressed that staff must not use physical restraint if this places them at risk of injury.
The following circumstance may warrant more careful consideration of the need to use physical restraint or otherwise intervene.
The department's duty of care towards its students means that staff have an obligation to take positive action in situations where students' behaviour threatens the safety of other persons. The level of intervention will range from verbally directing the students to stop through to physical restraint of one or more of the students involved. The department's obligations may not be met if staff wait until the behaviour subsides before taking action. The action that staff may be able to take however will be dependent on the nature of the particular incident. Physical restraint should only be used if other measures have not or will not prove effective in the circumstances. If physical restraint is considered necessary, it must be reasonable in the circumstances and staff must not put themselves at risk of injury.
As in 1, the department's duty of care towards its students means that staff have an obligation to act in situations where a student's actions may cause the student harm or injury. It may be the case that a student's actions occur as a result of both voluntary and involuntary behaviour. The same obligations and considerations as outlined in 1 apply to situations of student self-harm or injury.
As in 1 and 2, the department's duty of care towards its students means that staff have an obligation to take positive action in situations where students become involved in physical altercations with each other. The department's obligations will not be met if staff wait until the altercation concludes before taking action. The same obligations and considerations as outlined in 1 and 2 apply to situations where physical altercations between students occur.
Students will sometimes leave or attempt to leave departmental premises without authorisation and in circumstances where their safety may be at risk. Students may leave premises in a heightened state of anxiety such that their ability to recognise dangers is impaired. In such cases, physical restraint of the student to prevent they're leaving the premises may be justified. Any restraint used must be reasonable and staff must not put themselves at risk of injury.
If a student has left the premises without permission in situations where concerns are held for the student's safety, the degree of intervention by staff in attempting to return the student to the premises is a matter for judgment based on the specific circumstances. The action that may be taken can range from verbally requesting the student to return through to a pursuit and physical restraint. Should it not be possible to return the student to the premises, parents/carers should be contacted and if necessary, police notified.
In rare cases yes. While the physical restraint of students may be necessary to ensure the department's duty of care is exercised, the restraint of students without their consent may constitute an assault. In extremely rare cases criminal or civil action is taken against a member of staff who has restrained a student. So long as the restraint employed has been reasonable, one or more of the following defences will be available to staff depending on the circumstances:
The department has clear guidelines on discipline procedures, the use of corporal punishment and physical contact with students. The fact that a member of staff may have exceeded those guidelines does not mean these defences cannot be relied upon. Staff should be careful to use only that level of restraint that is reasonable in the circumstances to prevent the feared injury or damage. departmental disciplinary action may follow where the clearly unreasonable use of restraint has occurred.
Should a member of staff be subject to criminal assault proceedings by the police or by private prosecution, he or she may apply to the department for Crown representation. It should be noted that such criminal proceedings are extremely rare. Given the defences available to staff, the probability of a staff member who has acted professionally and reasonably being convicted is virtually nil.
In the even more unlikely event that civil proceedings are commenced against a member of staff, he or she may similarly apply to the department for Crown representation. If granted, staff will be indemnified for any verdict against the staff member and any legal costs incurred as a result of the proceedings. It should be noted that there is no record of any proceedings of this nature ever being taken against a staff member.