Purpose of this document

The department owes a duty of care to students. This duty requires it to take reasonable steps to protect them from foreseeable risks of injury. This duty of care is discharged by the department's staff.
The department must take reasonable care to prevent a student from injuring themselves, injuring others or damaging property. When discharging this duty of care, the best interests of child / children are the department's primary consideration.
It may be necessary for a staff member to physically intervene in an incident in order to meet this duty of care. Depending on the circumstances it may be necessary to physically restrain a student if there is no other reasonable way to keep a student or others safe.

Key considerations

Law and policies

Physical intervention in government schools is governed by:

• the law - including the common law duty of care, discrimination legislation, the Education Act 1990 (NSW), the Crimes Act 1900 (NSW) and the Work Health and Safety Act 2011 (NSW)
• policies and NSW Department of Education’s Code of Conduct.

Can a staff member physically intervene to punish a student?

No.  The Education Act 1990 (NSW) prohibits corporal punishment. The department’s Code of Conduct also makes it clear that physical punishment must not be imposed on a student.

When staff may physically intervene with students

• You and your staff must only physically intervene with a student as a last resort where there is a real and immediate risk of injury to the student or others or to property.
• You must only use the level of physical intervention that is reasonably necessary to prevent harm.
• You must not use physical intervention if there is a risk of injury to staff.
• You can (and, where appropriate, should) use physical intervention as part of doing what you practically can to protect students from risks of injury.

Situations that may require physical intervention

You or your staff must act if a students’ behaviour threatens the safety of the student other students or property, provided it is safe to do so.
Situations that may require physical intervention include:

• students threatening other students or staff
• students putting their own safety at risk
• fights between students
• students attempting to leave the school premises without authorisation and in circumstances that put their safety at risk and
• students attempting to leave the premises in a heightened state of anxiety, where they may be unable to recognise risks to their safety.

What if a student has already left the school?

You should comply with any existing planning to support the student in such circumstances. Your action could range from verbally requesting the student to return through to following the student and physically intervening to bring them back to school. It may be necessary to contact parents/carers for assistance or notify the police.

Levels of physical intervention

If you physically intervene with a student, it should only be to the level reasonably necessary to prevent a reasonably foreseen injury to the student or others or damage to property.
The definition of "reasonable physical intervention" will vary from case to case, depending on factors such as:

• age, size and strength of the student
• age, size and strength of the staff member
• what the student is doing
• where the behaviour is occurring.

Your actions may range from a verbal request to stop, through to physical restraint of one or more of the students involved, noting physical intervention is a last resource

Staff safety

You and your staff must never engage in any physical intervention that puts your own safety at risk.  You must only physically intervene in a situation if you are reasonably confident you can do so without being injured.
When to contact the Health & Safety, the Child Wellbeing Unit or Professional and Ethical Standards Directorate
You should consult the department’s Incident Notification and Response Policy and Procedure to identify when an incident of physical intervention should be reported to Health & Safety, the Child Wellbeing Unit or Professional and Ethical Standards

When to contact Legal Services

You should contact us when:

• a legal issue is raised (for example an allegation that a staff member has breached the duty of care)
• there is an injury to student or staff or
• you have been asked for an incident report.

Clarifications and commonly asked questions

Assault

Could I or my staff be charged with assault if we physically intervene with a student?

Possibly. Whilst physical intervention with students may be necessary to meet the department's duty of care, such intervention with students without their consent may also technically constitute an assault. However, criminal proceedings against school staff are rare. Where a staff member has acted reasonably with the purpose of preventing harm to students or properly, there will be a good defense to such a charge.

Could I or my staff be sued?

It is possible, but unlikely that this will happen. In the unlikely event a staff member is sued for negligence because they have physically intervened with a student, the department will defend the claim at no expense to the staff member and pay any damages, unless the staff member has committed an act of serious or wilful misconduct.
For an act to be considered “serious and wilful misconduct” there would need to be some degree of intent to harm the student or an act of extreme recklessness

Getting it wrong

What if I or my staff have not followed the guidelines for physical contact with students?

The department may take disciplinary action against you if you use unreasonable physical intervention.

Further information

Legislation

• Crimes Act 1900 (NSW)
• Education Act 1990 (NSW)

Departmental policies

• Code of Conduct for school staff.