Use Of Restraint Advice To Members

You have rights and obligations when it comes to physical restraint of students.  Physical intervention should be avoided in most instances.  However, there are times when members will be expected to use restraint or must do so for their own safety.  You should be aware of the expectations on you as well as your rights in order to reduce the chance that you will be accused of assault or failing to act appropriately.

Preventing Assault
Teachers are allowed to use physical contact to intervene in situations where students may be at risk of harm or injury resulting from uncontrolled behaviour of a particular student.  Ignoring such a situation places a teacher in considerable danger of being accused of negligence in the performance of the teacher’s duties.  Excessive force is never justified.  Only force necessary to prevent the assault is permitted.  The Criminal Code states:

37.(1) Everyone is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

Although the Criminal Code protection is broad, school board policies may contain more expectations which you should understand.

Self-Defence Against Unprovoked Assault
Members are lawfully permitted to use physical contact where necessary to defend themselves from physical harm or injury. If a child is hitting, kicking, grabbing, and biting you, you are entitled to defend yourself against harm. The Criminal Code states:

34.(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

However, you are never permitted to use excessive force and any force you do apply should be consistent with your board’s policies.

Correction of Child by Force
Using force to discipline a student puts teachers at particularly high risk of being accused of assault.  The Criminal Code provides only a limited defence to teachers correcting students by force:

43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be who is under his care, if the force does not exceed what is reasonable under the circumstances.  R.S., c.  C-34, s. 43.

School boards often require a higher standard of performance than this.  Many boards have a “hands off”, “no touch” policy in relation to discipline.  For this reason it is critical that all members take precautionary steps to avoid physical contact with students except where it is needed and in accordance with board policy.

Special Needs Students
Special needs students present additional challenges in the context of restraint issues. First, the student may already be assessed as being at risk to him/herself, staff or students if certain behaviours are not calmed in a timely and effective way. The most effective intervention may depend on the nature of the student’s physical or other special need.

Second, special needs students frequently require increased levels of routine physical intervention.  This can lead to a familiarity with physical interventions that engenders a routine or ease with physical intervention not because it is always required but because it is familiar and feels effective.  This creates a risky dynamic because teachers may engage in physical interventions out of this familiarity and forget to take precautions or perform the analysis that all teachers should perform prior to engaging in physical contact (e.g. is the physical intervention necessary; is it part of the student’s plan, etc.).

Third, people unfamiliar with the special needs student or commonly accepted practices may mistake reasonable physical intervention as unnecessarily forceful or even abusive.

General Precautions
In light of the above, several precautions will be in your best interests:

Review
• formal restraint-training ought to be discussed with the school board.  While some teachers are nervous about being trained in restraint practices, there are proven and recommended techniques that have been developed to lower the risk of injury and escalation;
• ensure full training in board policy and procedures regarding restraint and discipline;
• physical restraints may only be carried out in accordance with your board’s policy on restraint: you should be familiar with these policies and training on the policies should be discussed with the board;
• parents should be aware of and agree with restraint and discipline practices; any parental concerns should be discussed in the presence of administration with a goal of mutual acceptance;
• openly communicate with the principal and vice-principal about expectations;
• communicate expectations to students and post rules in classroom.

Recognize
• irrespective of school board or other policies, teachers have a free-standing obligation to ensure students do not engage in conduct that can injure themselves or other students; restraint can be applied reasonably on such occasions;
• students known to require physical intervention (e.g. aggressive behaviour; runners) should have a safety plan in place addressing the restraint policy applicable to them;
• restraint can be used as self-defense but only if reasonably applied;
• staff can protect themselves in restraint situations by having other adults present; wherever possible, do not handle a dangerous situation alone;
• where a student’s behavior is such that restraint is required on an ongoing basis, teachers must be alert to the risk of familiarity, discussed above (see Special Needs Students).

Report
• document all conversations, incidents and efforts to ensure safety;
• where teachers find they are at ongoing risk of harm because of a repeated need to restrain, some discussion must be held with PRS staff or the local federation about a possible health and safety remedy;
• if you are harmed in the course of restraining a student, you should report this to the school board, seek treatment quickly and report any injury to the WSIB;
• put concerns about particular students in writing to the principal and keep copies;
• keep documentation at home, not school.

Even where a teacher acts in accordance with a restraint policy and within their legal obligations, that teacher may ultimately face the burden of proving that the use of force was reasonable in the circumstances and necessary for the correction of the child.  Teachers have legal protections for their reasonable conduct and there are few cases in which reasonable restraint has resulted in criminal or civil liability.

For further information contact your local ETFO president or Professional Relations staff in Protective Services at 416-962-3836 or 1-888-838-3836.