As has been highlighted in recent media reporting, managing student behaviour can be a significant challenge for schools. Simpson Grierson’s Public Law and Government partner Sally McKechnie discusses how schools can mitigate and respond to difficult behaviour after the introduction of new rules on the use of physical restraint and seclusion.
A year has passed since seclusion was banned and the use of physical restraint restricted in schools. Introduced through the Education (Update) Amendment Act 2017, the rules on physical restraint have been tightened and seclusion was prohibited, effective from August 2017. Teachers can now only use physical restraint where there is a “serious or imminent risk” to a student’s safety.
These changes were intended to provide clarity for school staff on how to manage behaviour, but concerns were expressed at the time of the new rules being introduced that the threshold for acceptable physical restraint had been set too high. One year on and these concerns have not yet been alleviated, with teachers and principals increasingly calling for the framework to be reviewed.
Despite the intentions of the legal framework to provide clarity, in reality, responses to difficult behaviour often occur in the heat of the moment and it appears the changes are having a chilling effect on teachers. Many teachers argue that the high threshold does not reflect the practical reality of managing difficult student behaviour.
Providing a safe environment: the background
Students have a fundamental human right to a safe learning environment at school. Legal obligations are imposed on schools to uphold this right and protect the safety and wellbeing of their students. Boards of Trustees have a positive obligation to uphold this right under New Zealand’s National Administration Guidelines, and further obligations are imposed by the Vulnerable Children Act 2014, and the Health and Safety at Work Act 2015.
Powers to intervene in a student’s behaviour are available in certain circumstances. The tightening of the use of seclusion and physical restraint in New Zealand schools has however emphasised the need to protect the safety and wellbeing of students to an even greater degree. They have also introduced further compliance obligations.
Acceptable uses of physical restraint
Prior to the changes introduced in 2017, the use of physical force in the classroom was limited by the Crimes Act (which prohibits excessive use of force) and the Education Act (which bans corporal punishment).
The Education (Update) Amendment Act 2017 introduced a new legal framework for physical restraint, including the issuing of Guidelines for Registered Schools in New Zealand on the Use of Physical Restraint, by the Ministry of Education.
The Guidelines state that physical restraint is a serious intervention and must be a last resort. Acceptable uses of restraint include:
- Breaking up a fight
- Intervening when a student is carrying a weapon and is intent on using it
- Preventing a student from physically attacking another person
- Stopping a student who is throwing furniture in a way that risks injury to others
- Preventing a student from running onto a road
Under s 139AC of the Education Act, there must however be a “serious and imminent risk to safety” for physical restraint to be justified.
A student’s behaviour must however endanger another student or other person. Damage to property, for example, is not a ground to intervene. There have been reports of teachers refusing to break up fights between students out of fear that they will be investigated or reprimanded, and just standing back when a student is throwing items around a classroom, or punching a school computer.
There have not yet been any judicial interpretations of this section and how high the threshold for serious and imminent risk will be.
Review of Guidelines
Upon taking office, the Minister of Education, Hon Chris Hipkins had commented that the balance between the use of use of restraint and the realities of a student’s difficult behaviour was “not quite right”.
The Ministry of Education has recently indicated that it will meet with a focus group for a refreshment and review of its Guidelines to consider scenarios being faced by teachers where restraint would be an effective solution.
A test case in the courts would also provide clarity on the boundaries of physical restraint and set a benchmark for its ‘reasonable’ use. However, no such case appears to be imminent.
What should schools be doing in the meantime?
Remember there are responsibilities to manage physical restraint throughout the schooling system.
- Boards of Trustees, sponsors of partnership schools, and managers of private schools must develop annually reviewed policies on physical restraint and implement a complaints system for both teachers and students.
- The Principal, or a Principal’s delegate, is responsible for monitoring the use of physical restraint in a school, including the provision of appropriate training.
- Staff members must report any incidents, to be signed off by the Principal.
What the school can do:
- Check your policies on managing challenging behaviour and the use of physical restraint. These are required to be reviewed annually under the Guidelines and must be accessible for third parties including parents, the wider community and the Ministry of Education.
- Check that all non-teaching staff who may need to use restraint have been authorised in writing. This must be done before restraint is used.
- Ensure that appropriate training has been provided for your staff, on how and when to use physical restraint.
- Keep clear internal written records of each instance of physical restraint, and check that they can be understood by any third parties who may later review them.
- Regarding seclusion, check your time‑out policies, and the way they are implemented, to ensure that you are compliant with the new limits.
- Use consistent and accurate language when describing physical restraint in your mandatory reporting.
Partner Sally McKechnie is a leading public law and regulatory litigator and leads Simpson Grierson’s Wellington-based government and public law practice. Sally provides advice and representation on regulatory and statutory compliance, administrative decision making and processes, statutory interpretation, policy development and law reform. Sally’s approach is informed by her experience as a litigator. She is an experienced public law advocate, with considerable trial and appellate experience. Sally has appeared regularly in the High Court and Court of Appeal. Sally has particular expertise in regulatory compliance in the primary sector, education, health and medico-legal, privacy and official information. Sally joined the firm from Crown Law in May 2017. As Crown Counsel, she advised Ministers and senior officials on their public, regulatory and administrative law obligations. Sally was a Rhodes Scholar at Oxford University and began her legal career at another major New Zealand law firm. Contact Sally at firstname.lastname@example.org
 Education Act 1987, s 139AC(1)(a).
 As enshrined in the United Nations Convention on the Rights of a Child. New Zealand is a signatory.
 Nicholas Jones “Kids left to trash school property: Hipkins says restraint balance ‘not quite right'” The New Zealand Herald (online ed, 20 January 2018).