Restraint – Abuse or Meeting a Duty of Care?

Published
13 June 2019

Corporal punishment continues to be a topic of international debate, with a third of schools globally still practising such ‘disciplinary measures’. In Australia, however,  as per our previous School Governance article Queensland is the only Australian jurisdiction that does not prohibit corporal punishment. While in the broader community, restraint is often considered to be a form of protection and not corporal punishment, the role and interpretation in a school environment is varied and requires further review to fully understand the newest requirements.

Punishment or Protection?

The Guidelines to the Minimum Standards and Requirements for School Registration published by the Victorian Registration & Qualifications Authority (VRQA) that commence on 1 July 2019 will require Victorian schools to have policies and procedures in place for when it may be necessary to use “restrictive interventions” to protect the safety of a student and also potentially members of the school community.

It is the first time that a “restrictive interventions” policy has been required for the purposes of non-government school registration in Victoria. While other states and territories have general registration requirements relating to schools having behavioural and discipline policies, none of them has a requirement under their non-government registration guidelines for non-government schools to have a restrictive interventions policy.

The Victorian Department of Education and Training defines restraint to mean the use of physical force to prevent, restrict or subdue movement of a student’s body or part of their body. Students are not free to move away when they are being restrained. The term “restrictive interventions’’ is not defined in the 2019 Guidelines. In the disability industry the term has a specific meaning and restrictive interventions can only be used by licensed individuals. Although the VRQA has not defined the term, it is understood that in the school context, ‘’restrictive interventions’’ means restraint.

This new requirement is most likely a result of the VRQA seeking to make sure that schools and their staff are clear about their obligations in relation to this issue particularly bearing in mind that schools have a duty of care to all of their students to take reasonable steps to protect students in their care and supervision from harm. However, without any further clarification from the VRQA, schools are left with some questions.

What does this additional requirement mean in practice? What is a “restraint” policy likely to cover? We therefore examine the responsibility of staff to remove students from the threat of injury or harm even if that threat may now be the student themselves.

There is substantial guidance on this issue in relation to government schools in Victoria. The Victorian Department of Education and Training (VIC DET) has recently published a comprehensive What is Physical Restraint? Guide (Victorian Guide) and The Principles for Reduction and Elimination of Restraint and Seclusion in Victorian Government Schools document and it also provides an example Restraint of Students Policy (Victorian Policy) on its website. The Victorian Policy notes that student restraint should only be used “when certain conditions are met and that appropriate standards and procedures are followed”.

Restraint – May the Force Be… Minimal

The guidance from the VIC DET is that school staff may only use physical restraint with respect to a student when there is an imminent threat of physical harm or danger to the student or others and when the action to physically restrain or seclude would be considered reasonable in all the circumstances and there is no less restrictive means of responding in the circumstances. This may involve the seclusion of a student to prohibit them from causing harm to others, as well as to themselves. This form of restraint varies from seclusion in an open space to isolating the student in an unlocked room, however, it strongly prohibits the use of mechanical or chemical ‘restraints’. The Victorian Guide notes that principles of human rights underpin “all areas relevant to restraint and seclusion and strongly influence both proactive strategies to prevent, minimise and eliminate behaviours of concern, and reactive strategies in response to those behaviours”.

When applying or engaging in restraint or restrictive measure, staff should seek to:

  • use the minimum force required to avoid the dangerous behaviour or to reduce the harm to others as is reasonably possible
  • reduce the time where restraint is applied to the minimum duration possible and release the student once it is safe to do so
  • calmly communicate to the student and thoughtfully explain why the restraint is being applied and that it will cease once the student is no longer a danger to themselves or others
  • take a tailored approach and evaluate the child, the circumstances, their age, size, gender and any medical conditions
  • anticipate the probable reaction and proceed accordingly.

When Restraint Should Not Be Used

The Victorian Policy states that physical restraint and seclusion should not be used unless this is immediately required to protect the safety of the student or any other person.

It indicates some circumstances when physical restraint or seclusion should not be used as follows:

  • as a routine behaviour management plan or technique
  • to punish or discipline a student
  • in response to a student’s refusal to follow an instruction, unless there is a threat of imminent danger to the student or another person
  • when a student leaves the classroom/school without permission unless that conduct causes an imminent risk to the safety of the student or another person
  • when verbal threats of harm are made by a student, except where there is a reasonable belief that the threat will be immediately enacted
  • when property destruction is caused by a student unless that destruction is placing any person at immediate risk of harm.

It also states that any restraint which covers the student’s mouth or nose, in any way restricts breathing, takes the student to the ground into the prone or supine position, involves the hyperextension of joints, or application of pressure to the neck, chest or joints, must not be used.

The Fine Line - To Protect or Not to Protect?

Staff are of course at the “frontline” when it comes to managing this issue and will often need to think quickly and make fast decisions in complicated and stressful circumstances. This can be seen recently in the example of a Western Australian deputy principal who has been permitted to return to work after the conclusion of an investigation into the way he restrained a student when breaking up a physical fight. Other recent cases captured on camera in Canberra and Victoria both led to the teacher and principal on each occasion being dismissed. Despite the best intentions of teachers applying restraint in circumstances when they consider that a student is a danger to themselves or others, and their obligation to protect and uphold a duty of care, recent incidents, particularly those that have been picked up by the media, demonstrate that it is a controversial area and that teachers applying restraint to students will often be judged harshly by those who were not in attendance during the relevant incident. In the types of situations described above there can be reputational damage to the school leading to a drop in enrolments.

Using ‘excessive force’ when restraining a child could be deemed to be an assault but what is excessive depends on the circumstances. In addition, staff never have a legal duty or obligation to put themselves at risk of physical harm. A previous School Governance article UK teacher taps student’s head and is convicted of assault: Could it happen in Australia? discusses a UK case of teacher assault and how it could be dealt with under Australian law.

Whether or not required by the registration guidelines in the relevant state or territory, it is important that schools have a clear restraint policy. Furthermore, due to the potentially severe consequences in relation to this issue for both the affected students and the school, schools should look to take proactive measures to train and educate staff regarding any restraint of students.

Mustafa Mahmood

Mustafa is a Consultant in CompliSpace’s Education Division. Mustafa joined CompliSpace on completion of his Bachelor of Commerce degree from The University of Melbourne, graduating with majors in Economics and Management. Mustafa brings prior experience in Sales, Project Management and Consulting, thus contributing a unique set of skills to the Consultant role.