Education and Training Bill: Updating the physical restraint framework
The education sector has raised a number of concerns about the framework regulating physical restraint in schools, including a lack of clarity about what “physical restraint” is, when and how it can be used and what types of other physical contact with students are acceptable.
Part 3, subpart 3 of the Education and Training Bill includes several changes to the physical restraint framework to make it clearer that teachers and authorised staff members can physically intervene when necessary to prevent imminent harm and they reasonably believe there is no other option in the circumstances. Any force used must be reasonable and proportionate in the circumstances. These changes will apply only to the schooling sector as the early childhood sector has a separate framework regulating similar conduct in early childhood settings. The Bill maintains the current ban on seclusion.
The Bill specifies the requirement that “physical force” be used only when necessary to prevent imminent harm and the person using the force reasonably believes there is no other option in the circumstances to prevent the harm. Currently, the 1989 Act does not specifically state that use of restrictive force should be only when it is reasonably believed there is no other option. The addition of this requirement recognises that exercising physical force against a student can risk injury to the student and/or to the staff member. It aligns with the expectation that the use of physical force in schools should be minimised.
Currently, section 139AC of the Education Act 1989 restricts the use of physical restraint to situations where the person doing the restraining reasonably believes safety is at serious and imminent risk and the restraint is considered reasonable and proportionate. Clause 95 of the Bill changes the language around the authorisation for use of physical force from its current preventative wording to permissive wording. This change will make it easier for teachers to understand when they may use force and better reflect this Government’s intention to build a high trust environment for the teaching profession.
Clause 95 alters the threshold for the use of force from when safety is “at serious and imminent risk” to when it is necessary to prevent imminent harm and the person using the force reasonably believes that there is no other option in the circumstances to prevent the harm. This brings the language of the Bill into line with the language in the code of conduct for the teaching profession (Our Code Our Standards). Intervening to prevent harm can include harm to the health, safety or wellbeing of the student or any other person, including harm caused by significant emotional distress.
The Education Act 1989 provides the Secretary for Education with the power to make rules and guidelines relating to the use of physical restraint. The Bill carries across these powers, and introduces a requirement for the Secretary to consult with children and young people, particularly those with learning support needs, as well as organisations representing the interests of:
- governing bodies of schools
- parents, and
- the disability community.
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