Law on Restraint
Law on Restraint
Legal Provisions
These provisions are contained in the Education Act 1997 which came into force on 1st April 1998 to clarify the position regarding the legitimate use of physical force by inserting a new section 550A in the Education Act 1996 entitled:
"Power of members of staff to restrain
pupils"
The wording of this provision states:
1) A member of the staff of a school may use, in relation to any pupil at the school such force as is reasonable in the circumstances for the purpose of preventing the pupil from doing (or continuing to do) any of the following, namely:
2) This applies where a member of the staff of a school is:
The use of corporal punishment is, of
course, excepted from these provisions.
Definitions
"Member of staff" in relation to a school, means any teacher who works at the school and any other person who, with the authority of the headteacher, has lawful control or charge of pupils at the school.
"Offence" includes anything which would
be an offence but for "the operation of any presumption that a person
under a particular age is incapable of committing an offence".
Guidelines
Guidance to date has tended to concentrate on the use of force in an emergency only, for example: where pupils place themselves at risk of physical injury and where damage to property can be limited by the use of restraint, without endangering the physical safety of pupils or staff. The new provisions make it clear that teachers and other authorised members of staff are entitled to intervene in other, less extreme situations.
"Reasonable force"
There is no definition in the Act of "reasonable force", only a description of the circumstances where it might be used in schools by teachers and authorised staff. It should be noted that the use of any degree of force is unlawful if the particular circumstances do not warrant it. The degree of force should be in proportion to the circumstances and seriousness of the behaviour or consequences it is intended to prevent. The level and duration of the force used should be the minimum necessary to achieve the desired result, such as to restore safety.
It is impossible to describe definitively when it is reasonable to use force and how much may be used, beyond stating that this will depend on the circumstances of the case. Relevant considerations as to whether it might be reasonable to use for and the degree of force to be used could include for example the age and sex of the child. In some circumstances. it will, of course, be inadvisable for a teacher to intervene without help, such as where a number of pupils are involved; where the pupil is older and physically mature, and where the teacher might be at risk of injury.
In all circumstances, if a teacher intervenes to restrain a child, it is better to find a second responsible adult to assist or to witness. However, a teacher could be held to be negligent if (s)he did not intervene to stop an injury, because there was no adult help nearby. All use of restraint should be reported immediately after the incident. Schools should have a separate log book for incidents of restraint. If there was any injury, the incident was in any way "hazardous", or put a teacher or other member of the school community at risk, an ordinary incident form should be completed as well.
The duty to act
Although the Act does not address the point, it is also relevant that failure to take action in circumstances which merit it can be as serious as over-reacting. In many circumstances it is not a safer option for a teacher to do nothing or to take very limited action when to take action could restore safety. So far as a teacher's duty of care is concerned, an omission can be significant if there were to be a subsequent claim for negligence. Again, the circumstances of the case are the deciding factor and a teacher would not be expected to intervene to restore safety, at all costs, or with risk to his or her personal safety.
Members are reminded that violent behaviour is a criminal act and the police can be called where children are out of control and need restraining physically, or where a child is not obeying a lawful instruction (such as to leave the premises when excluded).
The NUT recommends that incidents of restraint should be logged in a record book provided for this purpose and monitored by a senior member of staff. The record should be completed at the time of the incident and detailed to help with any later investigation or complaint. It is also advisable to inform the parents before the child returns home, if possible.
Behaviour Policies
From September 1998, all schools have to have a behaviour policy. This may include a section on the use of physical restraint, touching and holding. Teachers should make themselves familiar with the school's policy and ensure that they act within it at all times. The School policy should not indicate that a teacher will never restrain a child: this would weaken the teacher's position if restraint has to be used.
Suffolk LEA Guidelines on restraint have been drafted but never published. The Union is constantly requesting this extra assistance in defining what would be considered "reasonable".
April 1998:
LEA behaviour support plans: LEAs have to publish a statement setting out their arrangements for dealing with pupils with behavioural difficulties including the help they offer schools in promoting good discipline and dealing with behavioural problems.
And from September 1998:
School policies: Governing bodies must set the framework for the school's discipline policy. The headteacher must draw up a discipline policy and make it known at least once a year to pupils, parents and staff.
Detention: schools have a legal right to detain a pupil after the end of a school session without parental consent. The school must give the parent at least 24 hours written notice. The law will now permit a pupil to be detained at school after the end of any session despite the lack of parental consent. For the measure to be lawful, the headteacher must have made it generally known within the school and brought it to the attention of parents that detention might be imposed.
The detention must be imposed by the headteacher or another teacher authorised to do so and must be "reasonable in all the circumstances"; that is, it must be a proportionate punishment. Any special circumstances relevant to the particular pupil must be taken into account, such as the pupil's age. special needs, religious requirements and travel arrangements.
Exclusions: Headteachers have the right to exclude pupils for fixed periods of up to 45 days a year and there have been changes to the procedures for hearing appeals when pupils are excluded from Schools. This strengthens the right of the school to be represented at such hearings and for the interests of the other pupils and staff at the school to be considered.
Published by Suffolk NUT
March 1998, up-dated May 2000
Members should be careful when writing reports on the use of restraint, both in any Incident Report Form (to report any injury or hazardous incident) and in the Restraint Record Book. Members should ensure that the reason for using restraint is given, and that this includes a quotation of one of the legitimate situations mentioned in the Act. Members should avoid emotive language or words: "restrained by the lower arm" is better than "grabbed by the wrist"; "moved aside" is better than "pushed out of the way". etc. When describing the context, explain your concerns for the health and safety of pupils, or yourself. You should always be certain that your action was necessary to prevent further offence or disorder and to protect others and self. If in doubt, please contact the Division Secretary before completing a written record. If time does not permit this, you might request the advice of a trusted experienced colleague to help word the report.