The concerns include 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 Act includes several changes to the physical restraint framework to make it clearer that teachers and authorised staff members must not physically restrain unless it is necessary to prevent imminent harm to the health, safety or wellbeing of a child, young person or to another person, and the teacher or staff member reasonably believes there is no other option available in the circumstances. Any restraint used must be reasonable and proportionate in the circumstances. These changes apply only to the schooling sector as the early childhood sector has a separate framework regulating similar conduct in early childhood settings. The Act maintains the ban on seclusion.

The Act defines physical restraint as “physical force to prevent, restrict, or subdue the movement of the student’s body or part of the student’s body against the student’s will.” The addition of “against the student's will” clarifies that physical contact for guiding, comforting or communicating with a student, that the student does not resist, would not be subject to the conditions set out in section 99 of the Act.

The Act specifies that “physical restraint” must be used only when necessary to prevent imminent harm and the person using restraint reasonably believes there is no other option in the circumstances to prevent the harm. The previous legislation did not specifically state that use of restraint should be only when it is reasonably believed there is no other option. The addition of this requirement recognises that exercising physical restraint 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 restraint in schools should be minimised.

The Act also specifies that staff members who are authorised to use physical restraint must be trained.

Section 99 alters the threshold for the use of restraint from when safety is “at serious and imminent risk” to when it is necessary to prevent imminent harm and the person using restraint reasonably believes that there is no other option in the circumstances to prevent the harm. This brings the language of the Act 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 Secretary for Education has the power to make rules and guidelines relating to the use of physical restraint. The Act carries across these powers and expands on the content that must be covered by the Guidelines to ensure that they also provide examples of best practice in assessing significant emotional distress, a framework for prevention and de-escalation, and advice on assessing behaviour escalation levels. It also introduces a requirement for the Secretary to consult with children and young people, particularly those who are Māori and those with disabilities or learning support needs, parents, whānau and caregivers, and organisations representing the interests of:

• teachers
• principals
• governing bodies of schools
• parents
• the disability community.