Physical contact with students

the latest guidance

Staff physical contact with students is a vexed area. Andrew Knott of Holding Redlich Lawyers examines two recent cases which are enlightening on aspects of the appropriateness of physical contact, including the use of physical restraint, in an educational context. Both are accessible without charge on AustLII. This article does not deal with the criminal law, other than to observe that sensible principles apply.

In Qld College of Teachers v RCJ (No. 2) QCAT 540 (18 December 2015) the issue was the test, in a professional registration context, for determining the appropriateness of physical contact.

The principles enunciated by the Queensland Civil and Administrative Tribunal (QCAT) arose in a context where physical contacts (a Statement of Agreed Facts having being filed) had to be considered in the light of whether or not those physical contacts meant the teacher had behaved “in a way that does not satisfy the standard of behaviour generally expected of a teacher”.

The Tribunal noted in respect of that concept that:

“The standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers”.

The matter was of some complexity, but the Tribunal made the following comments:

“None of the contact was violent, indecent or sexual. It was not accompanied by indecent or provocative comment. It did not occur over an extended period of time. It is accepted the contact complained of was accidental and resulted from physical contact initiation by Mr X to either comfort or encourage a child. In the case of Allegation 4 the contact itself was accidental and minimal.

“Of the other four incidents, we find the physical contact did relate to valid educational purposes such as behaviour support, management and care of students. In three cases Mr X was attempting to care for students who reported feeling sick. His actions and words, taken together and within context, indicate an appropriate response. In the court incident, Allegation 3, Mr X was providing behaviour support by praising a student for good behaviour. This incident did not involve touching a sensitive body area.”

The Tribunal dealt with an interesting point of law, the nature of the test to be applied. The Queensland College of Teachers submitted that the ‘necessary test’ applied, and the teacher’s solicitors submitted that the proper standard is the ‘reasonable test’.

The Tribunal held that the reasonable test was the appropriate test to apply.

“No harm has been identified which demonstrates a need for a higher standard. There is no evidence to suggest those children who respond well to spontaneous physical contact, such as a tussled head, or a ‘high five’, accompanied by a ‘well done’ should be denied it. It would be sad to think that celebration of a victory, or commiseration for a loss, would be restricted to singing the school song and passing a water bottle without fingers touching.

“The reasonable test gives sufficient protection to students without imposing artificial restrictions that remove their school life one step further from their after school world. Some schools may choose to develop policies which would implement the ‘necessary test’ and they are entitled to do so. This would then become relevant to what is reasonable in their school environment.”

In relation to relevant considerations, the Tribunal commented:

“When assessing the incidents of physical touching against the standard of expected behaviour both parties agreed many factors could be considered to establish the context of the interaction. These include: the age of the students, whether they have a rapport with the teacher who is in turn aware of their needs and requirements, the level of distress of the student, the extent of the physical injuries, whether they are ‘special needs’ students and the policy of the school, which would in turn impact on the expectations of the students.”

It was determined that there had been no breach by the teacher and no disciplinary action was taken.

The more one physically engages in physical contact with students the more one is at risk. Teachers should exercise caution, should communicate with the school administration, and discuss as a school staff, what it is considered appropriate in that particular environment, and then to ensure that their conduct is consistent with the agreed protocols in that school.

Ms RT v The School (2015) FWC 2927 (7 May 2015) is a decision of the Fair Work Commission, in respect to the dismissal of a teacher who had used masking tape across the laps of students to secure them to chairs. The reinstatement of the dismissed teacher was refused. In respect to this, the Commissioner stated:

“…I am not satisfied that in these respects [the teacher] followed the procedures for addressing such situations and the policy of dealing with inappropriate behaviour.”

The critical conclusions in the case were:

“I have concluded that the allegations that [the teacher] secured the three reception children to their chairs with masking tape on multiple occasions was substantiated. I accept that the masking tape may not have touched the children’s skin and that it may have been physically possible for the children to break out of this tape. Nevertheless, [the teacher] clearly intended that the children should regard themselves as ‘secured’. The teacher’s behaviour in these respects was inconsistent with the expectations of her as a teacher in terms of the guidelines and specified standards.”

Repeated non compliance with employer policies was important in this case.

This case is an important reminder of the need for restraint in using restraint.

In different ways, these two cases (which should be read in full by those with a particular interest) illustrate sensible application of appropriate principles, and should encourage teachers to be confident of the sensible, and educationally aware, approach of courts and tribunals to this important issue.