Policy
Managing serious and imminent harm by tamariki and rangatahi
We aim to prevent situations involving serious and imminent harm by tamariki and rangatahi we work with. When these situations arise, we aim to de-escalate where possible. Physical restraint of te tamaiti or rangatahi must only be used as a last resort.Practice framework prompts for this policy
Our practice framework helps us make sense of and organise our practice so it is framed in te Tiriti o Waitangi (the Treaty of Waitangi), and draws from te ao Māori principles of oranga, within the context of our role in statutory child protection and youth justice in Aotearoa New Zealand.
Ngākau whakairo
How can I uphold the rights of te tamaiti or rangatahi while ensuring they (and others) remain safe in situations of potential or imminent harm? What skills, planning and knowledge do I need in my day-to-day mahi to keep them safe?
Ngākau whakairo practice framework domain
Whai mātauranga
What do I know about the whakapapa and oranga of te tamaiti or rangatahi in my care? How does this influence how I approach difficult situations with them?
Whai mātauranga practice framework domain
Whai oranga
If a situation arises where I need to use physical restraint, how can I do this in a way that causes the least amount of harm or trauma to te tamaiti or rangatahi? If needed, how could I restore and repair my relationship with te tamaiti or rangatahi afterwards?
Whai oranga practice framework domain
Whai pūkenga
What will I need to do to build or enhance my skills in managing times of heightened stress or distress for te tamaiti or rangatahi?
Whai pūkenga practice framework domain
Whai ākona
How have I managed escalating situations in the past, both with adults and tamariki or rangatahi? What worked to de-escalate or prevent a dangerous situation, and what did I learn about my own response to these situations?
When this policy applies
This policy applies when we are interacting with tamariki or rangatahi in our care or custody outside of a section 364 residence setting and we:
- need to use de-escalation in response to the behaviour of tamariki or rangatahi
- believe there is potential for serious and imminent harm by tamariki or rangatahi and we believe physical restraint may be needed to protect them or others
- consider the search and potential removal of their belongings is needed to prevent serious and imminent harm.
This policy does not apply to tamariki or rangatahi while they are in a youth justice or care and protection residence established under section 364 of the Oranga Tamariki Act 1989. Those residences are covered by specific provisions about use of force, and search and seizure in the Oranga Tamariki Act 1989 and the Oranga Tamariki (Residential Care) Regulations 1996.
Policy: Working with tamariki and rangatahi in residences
Guidance: Using de-escalation to respond to risk of harm for tamariki, rangatahi, self and others
Principles that underpin our response to serious and imminent harm
The primary focus must always be on prevention, de-escalation and minimising the harm experienced by tamariki, rangatahi and others.
Use of physical restraint to manage risk of harm should only be considered as an absolute last resort.
Kaimahi have the right to feel safe and must consider their personal safety before physically intervening in a situation that could cause them injury or harm.
Tamariki and rangatahi we work with have the right to feel safe and respected, and have their mana upheld. They also have a right to freedom of movement and bodily autonomy. This means we should focus on prevention and de-escalation.
Prevention
- Kaimahi must work to create supportive, safe relationships and environments that protect the mana of tamariki and rangatahi, address their needs and acknowledge their rights.
- Behaviour is part of communication. We must understand how te tamaiti or rangatahi communicates and support them to develop and use strategies to help manage situations that can be distressing and could trigger a behavioural response. We must build understanding of possible triggers and assess how we may potentially respond before the situation arises.
- We must support tamariki and rangatahi to restore and maintain their mana and to address underlying causes of harmful behaviour.
- Kaimahi should ensure tamariki and rangatahi have sufficient personal space at all times and ensure they have enough time to process instructions or requests at their own pace.
De-escalation
- We must use non-physical de-escalation approaches first when behaviours create risk to te tamaiti or rangatahi or others.
- We must always consider who is the most appropriate person to intervene – taking into account culture, gender, the relationship with te tamaiti or rangatahi and the environment we are in.
Guidance: Using de-escalation to respond to risk for tamariki, rangatahi, self and others
What is serious and imminent harm
Serious and imminent harm includes an immediate threat to safety that we believe will occur within a short period of time. There must be a substantial risk that te tamaiti or rangatahi will cause physical harm to themselves or another person.
What is physical restraint
Physical restraint may include any intervention that involves applying force – for example:
- holding or grabbing
- pushing or pulling
- preventing, restricting or subduing the movement of te tamaiti or rangatahi, including any part of their body against their will.
Circumstances where the use of physical restraint by kaimahi may be considered necessary to protect tamariki, rangatahi or others include:
- breaking up a fight
- stopping te tamaiti or rangatahi from using a weapon (this must include an imminent threat)
- when furniture or other objects are about to be thrown at or close to others who could be injured
- preventing te tamaiti or rangatahi running onto a road or near moving vehicles.
Searches of tamariki or rangatahi and removal or seizure of harmful items
If there is a genuine belief that te tamaiti or rangatahi is about to self-harm or commit an offence that would be likely to cause immediate and serious injury to a person, then kaimahi may be justified in using reasonable physical force in relation to te tamaiti or rangatahi – including to search for (and/or remove) an item that may be used to cause serious and imminent harm.
Before we use physical restraint or force, te tamaiti or rangatahi must be asked and encouraged to hand over the item. If we intend to carry out a search, we must explain to te tamaiti or rangatahi why we’re concerned and seek their consent to the search.
If a search needs to be conducted, we must ask for Police assistance if time and circumstances permit. If we believe a search needs to be conducted without delay, at least 2 kaimahi (including 1 senior staff member) must be present when the search is conducted. Searches where te tamaiti or rangatahi does not consent can only be conducted by kaimahi where it is clear that there is a serious and immediate risk of harm to te tamaiti or rangatahi.
When kaimahi locate an unlawful item or believe that te tamaiti or rangatahi is in possession of an unlawful item (for example, drugs) outside of a section 364 residence, they should not conduct a search or remove or seize items and should instead contact Police for assistance.
Searches of te tamaiti or rangatahi by kaimahi must only be conducted in the emergency situations identified above, and only as a last resort.
Guidance: Search and seizure as part of managing serious and imminent harm
Legal implications of using physical force, intervention or restraint
Using force on te tamaiti or rangatahi (unless authorised by law) could result in legal action for the individual. Use of force may be lawful in limited circumstances – for example, where it can be justified within the terms of:
- the prevention of suicide or certain offences (section 41 of the Crimes Act 1961)
- the defence of self or others (section 48 of the Crimes Act 1961)
- control by parent or person in place of a parent (section 59 of the Crimes Act 1961).
These defences do not prevent prosecution or conviction. Whether the use of force is considered reasonable will depend on a number of factors, including the imminence and seriousness of the threat of attack (for self-defence or defence of another), and the age, nature and maturity of te tamaiti or rangatahi (for the parental control defence).
Consideration would also be given to whether the force applied was:
- commensurate or proportionate to what is happening
- necessary for the purpose for which that force is applied
- applied for the shortest amount of time needed to de-escalate a situation
- only applied as a last resort where other non-physical methods and de-escalation techniques have been used.
Physically restraining te tamaiti or rangatahi without lawful authority could lead to the kaimahi involved being charged with assault (or other offences) by Police, or private civil legal action (for example, for causing bodily harm – battery).
Crimes Act – defences for using force
There are several different legal defences in the Crimes Act for using force against someone.
Prevention of suicide or certain offences
If you believe on reasonable grounds that te tamaiti or rangatahi is about to self-harm or commit an offence likely to cause immediate and serious injury to other persons and that belief is reasonable based on the circumstances that you perceive and you believe that the force is reasonably necessary (that is, not excessive force), then you will likely have a defence that the use of force was reasonably necessary to prevent one of the situations above (self-harm or an offence likely to cause immediate and serious injury).
Prevention of suicide or certain offences – section 41 of the Crimes Act 1961
Self-defence or the defence of another
Section 48 of the Crimes Act provides a defence to an assault charge if you are defending yourself or someone else. However, the amount of force used has to be reasonable, given what you believed the situation to be.
What is 'reasonable' in the circumstances will depend on the imminence and seriousness of the threat, and the availability of alternative options that do not require the use of force, such as the opportunity to seek protection without the use of force.
This defence does not apply to use of force to prevent damage to property, further offending or absconding.
Self-defence and defence of another – section 48 of the Crimes Act 1961
Parental control
A parent or person in the place of a parent is justified in using force if the force used is reasonable in the circumstances and is for the purpose of:
- preventing or minimising harm to te tamaiti or rangatahi or another person, or
- preventing te tamaiti or rangatahi from engaging or continuing to engage in conduct that amounts to a criminal offence.
Only the physical restraint needed for the immediate control of te tamaiti or rangatahi is permissible. Use of physical restraint once the need for immediate control has passed is unlawful.
Where a person seeks to justify the use of physical restraint against te tamaiti or rangatahi under section 59, they carry the initial burden of providing or at least pointing to evidence that their actions were directed at one or more of the purposes outlined in section 59(1) and were reasonable in the circumstances. The older te tamaiti or rangatahi is, the less likely it is that physical restraint used for the above purposes will be seen as being reasonable in the circumstances.
If criminal charges are laid, a court would determine whether a defence under the Crimes Act justified the use of physical restraint in the circumstances.
Physical restraint or force must never be used to gain compliance, enforce rules or punish tamariki or rangatahi. This is unlawful.
What kaimahi must consider before, during and following use of physical restraint or force
Before any use of physical restraint
We must always consider whether there is any alternative to physical restraint. Physically restraining te tamaiti or rangatahi is traumatising and negatively impacts the mana of the person concerned and those around them.
During use of physical restraint
Any physical restraint must be reasonable and proportionate in the circumstances, including:
- use of the least restrictive amount of restraint appropriate
- for the shortest amount of time
- showing consideration of the vulnerabilities of te tamaiti or rangatahi – for example, known medical conditions or disabilities or previous trauma.
As part of using physical restraint, we must ensure cultural safety and preserve the dignity of the person being restrained to the greatest extent possible, including being mindful that:
- the head is tapu for Māori and sacred for Pacific peoples so we avoid touching it during physical restraint whenever possible
- for Pacific peoples, physical and eye contact is often kept to a minimum between younger and older people and across genders.
The condition and wellbeing of te tamaiti or rangatahi must be continually monitored and assessed while a physical restraint is being used. The physical restraint must be stopped immediately if:
- there is a risk that the use of the physical restraint will endanger the safety of te tamaiti or rangatahi
- there is no longer imminent risk of injury to self or others
- the physical restraint is determined to be ineffective in reducing or eliminating the risk of injury to self or others.
Following an incident involving physical restraint
Following every incident where physical restraint has been used, we must complete the following actions.
Inform others
The kaimahi must inform senior staff (usually their supervisor or team leader) about the use of physical restraint straight away. The supervisor or team leader must then let their manager know about the incident.
Whānau or family must be informed of the incident. This can be done by the kaimahi involved, or a senior staff member, depending on the relationship with the whānau or family.
Record what happened, including the circumstances leading up to the incident and the physical restraint used.
Recording use of physical restraint and searches
Health check
A review by a medical practitioner must be undertaken if there is a risk that te tamaiti or rangatahi has been injured, or where kaimahi consider that an assessment is necessary to ensure the oranga of te tamaiti or rangatahi. If kaimahi are uncertain, they should consult their supervisor.
Restorative practice
We must take steps to address the impact of the use of physical restraint on te tamaiti or rangatahi. Restraint impacts wairua, hinengaro, tinana and oranga and the steps taken at this time must address all of these aspects.
- Talk to te tamaiti or rangatahi as soon as possible about their needs and feelings, and the next steps related to the use of physical restraint and the wider incident. Continue to monitor the oranga of te tamaiti or rangatahi, and check on how they are feeling, and whether they would like to discuss the incident more.
- Consider if it is appropriate to te tamaiti or rangatahi to use karakia or prayer as part of healing and cleansing after physical restraint.
- Talk to te tamaiti or rangatahi about why restraint or force was used. Explain the perceived risk to them and discuss how we can support them to develop their own de-escalation techniques.
- We hold a debrief of the incident with our manager and other kaimahi involved.
- Plan what needs to happen so te tamaiti or rangatahi and kaimahi can:
- minimise the risk of similar incidents
- process this new trauma in accordance with relational, inclusive and restorative practice – think about who needs to be involved, what we need to cover and follow-up steps.
Review plans
Update the All About Me plan to address any new information about triggers to emotional and behavioural needs and any responses or supports being provided as a response.
Respond to any concerns
If any concerns are raised after the use of physical restraint, follow the feedback and complaints section of this policy.
Managing feedback and complaints about physical restraint or searches
Recording use of physical restraint and searches
We must record the use of physical restraint or search in mySafety and CYRAS.
In mySafety, we must include details about:
- who was present
- what happened in the lead up to and during the situation
- what attempts were made to de-escalate the situation
- whether any physical injuries were sustained by the people involved
- the impact to te tamaiti or rangatahi and kaimahi and what support, if any, is being provided.
The manager of the kaimahi involved is responsible for ensuring the kaimahi completes a mySafety report and must also review the report.
When an incident involves an allegation of harm to te tamaiti or rangatahi, the policy covering allegations of harm must be followed.
Information about the incident and the use of physical restraint or search must also be recorded in the casenotes for te tamaiti or rangatahi on CYRAS. This includes information from the mySafety report.
Training in Safety Intervention (formerly known as MAPA)
Using prevention and de-escalation techniques must be our first responses to incidents. Kaimahi working with tamariki and rangatahi in roles most likely to encounter instances of serious and imminent harm must complete in-person training in the Safety Intervention Programme (formerly known as MAPA) or other training approved by Oranga Tamariki. This covers kaimahi who:
- work with tamariki and rangatahi in remand homes and group homes
- are escorts who transport tamariki and rangatahi.
Kaimahi must ensure they complete the refresher training in the recommended timeframe.
Other frontline kaimahi can access the Safety Intervention Programme training on myLearn.
Kaimahi should speak to their supervisor or line manager about doing this course or completing a refresher of the Safety Intervention training.
Managing feedback and complaints about physical restraint or searches
Supporting feedback and complaints by te tamaiti or rangatahi
Te tamaiti or rangatahi must be informed about their right to make a complaint when physical restraint or a search has occurred if they have concerns about how they have been treated.
Kaimahi (preferably not the person who restrained te tamaiti or rangatahi) must support te tamaiti or rangatahi to make a complaint by:
- listening to their concerns without interrupting them
- assisting them to write down their complaint if required
- telling them where they can get help from and assisting them to get in contact:
Guidance: Explaining rights and entitlements to tamariki and rangatahi
Investigating a complaint
Allegations that kaimahi have used inappropriate physical restraint or searched te tamaiti or rangatahi inappropriately must be investigated by Oranga Tamariki. Any investigation will be in accordance with policies such as the Oranga Tamariki code of conduct, values, disciplinary policy and disciplinary guidelines.
We must consider whether matters related to use of physical restraint meet the definition of harm to te tamaiti or rangatahi and require a report of concern to be made.
Police may investigate whether the kaimahi should be charged with a criminal offence.
Guidance: Child Protection Protocol
Staff resources: