Guest Post: Continuing problems with the new seclusion and restraint provisions

A guest post from the PPTA:

Seclusion

seclude, in relation to a student or child, means to place the student or child involuntarily alone in a room from which he or she cannot freely exit or from which the student or child believes that he or she cannot freely exit

This definition of seclusion, under which it has to meet all three tests is at risk of not actually banning the seclusion rooms that it is designed to prohibit.

To counts as seclusion and be banned it requires all three elements: 1 involuntarily, 2, alone 3 can’t exit or believe they can’t exit.

The question is what does it mean to be ‘involuntarily placed’? Is it involuntary if a student is told to go somewhere and does it, even grudgingly?

The implication of this is that anything that a teacher tells a student to do which they then do is involuntary – i.e. get out your books, go to assembly now etc…

The other contestable phrase is ‘believes that he or she cannot freely exit’. The extent of teachers’ authority  is also in question here – does a teacher telling a student that they cannot leave a room (even until a certain condition is met) mean that they ‘believe they cannot freely exit’?

By including the arguable phrases ‘involuntarily’ and ‘believes that he or she cannot freely exit’ the definition of seclusion is opened up to legal challenge and lacks clarity for schools.

In some situations schools could interpret this to mean that as long as they do not physically place (i.e. drag, lift, carry) a student into a room then they can continue to seclude (i.e. it must have been voluntary as the student willingly walked in her/himself), and in others they may assess that they cannot even use a withdrawal room, as telling a student to go to a room and stay there until a certain condition is met means that they cannot freely leave.

This definition is a mess, and while the sector may have agreed it for use in guidelines that is quite different from agreeing to it in law. We did not expect that it would be written into legislation when we were developing the guidelines and such a statement from the Government does not recognise the majority of submissions from the sector to the Select Committee that were opposed to the proposed definition.  

Restraint

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 student’s body

 

1)

A teacher or authorised staff member must not physically restrain a student unless—

(a)

the teacher or staff member reasonably believes that the safety of the student or of any other person is at serious and imminent risk; and

(b)

the physical restraint is reasonable and proportionate in the circumstances.

 

Situations this could lead to:

1. A student squirting a fire hose into a classroom won’t be able to have the hose taken off them, as it is unlikely to be putting safety at ‘serious and imminent risk’
2. A student steals a device from another student and then goes to walk out of the classroom. The teacher cannot stand in the doorway and block them leaving.
3. A student is hitting cars parked in the school carpark with a stick. A teacher cannot grab the stick off them.
4. A student has a tendency to get angry and damage property. The principal and parents have an agreement that a trained staff member can restrain the student until the parent arrives when this happens. This won’t be able to happen in future.

 

The greatest irony is that in the first three of these situations while a teacher cannot intervene, a member of the public could.

Teachers are already very cautious about exercising physical restraint, and there are a maximum of 1-2 cases a year (out of around 50,000 teachers in schools) which lead to complaints to authorities about it. There is no evidence to suggest that this is an area which needs new legislation.

I tend to agree with the PPTA that the solution here, may be worse than the problem.