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New provisions are contained in the Education Act 1997 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:
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:
committing any offence causing personal injury to, or damage to the property of, any person (including the pupil
himself); or engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school or among any of its pupils, whether behaviour occurs during a teaching session or otherwise.
2) Subsection 1 applies where a member of the staff of a school is:
on the premises of the school; or elsewhere at a time when as a member of its staff, he has lawful control or charge of the pupil concerned.
The use of corporal punishment is, of course, excepted from these provisions.
"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".
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.
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 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.
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, to his or her personal safety.
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.
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.
Other sections of the Act on Discipline come into force as follows:
LEA behaviour support plans: LEAs will 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 withbehavioural problems.
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 will 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 will have the right to exclude pupils for fixed periods of up to 45 days a year and there will be changes to the procedures for hearing appeals when pupils are excluded from Schools. This will strengthen 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.